§ Order for Second Reading read.
§ MR. M'MAHON
, in moving the second 393 reading of this Bill, said, that on the 7th of July, 1858, a Bill for securing the object which he now had in view was brought in, and had passed a second reading, by the very large majority of 145 to 91. The Bill which he now proposed was substantially the same, the only difference being that a great many Members had objected to the Bill which was at that time brought in, because it was supposed to give a right of appeal to the Crown, where the party was acquitted, and he had so worded the present Bill that no one could appeal for a new trial unless the party who was unjustly convicted. Another objection then made was, that the Bill provided facilities for allowing bills of exception, admitting of a great many technical objections. He, therefore, had struck that part out. There was one other provision which he thought the opponents of the Bill laid great stress upon, and which was a provision assimilating the powers of the Courts in this country to those of the United States of America, and allowing the Judges, having criminal jurisdiction, who were not satisfied with the verdict, to direct a new trial. Therefore he trusted, as he had upon the present occasion endeavoured to meet all the objections which had been urged against the former Bill, the House would agree to the second reading of this Bill. The object which he had in view in bringing forward this Bill was to meet an anomaly in the administration of the law in this country, which he humbly submitted was a disgrace. If a person was sued for £20 or £10 in any superior Court of Justice in this country, he might have as many new trials as the justice of the case demanded, and he might have bills of exceptions, or even go to the House of Lords; but if he was charged with an offence by which he forfeited, not alone his property, but, it may be, his life, and character, and all that was most dear to him, he had no redress whatever, against caprice or error in judgment of the First Judge of Assize before whom the case was heard, except by appeal to the Home Office. It was quite clear that that was an anomaly which was wholly indefensible, and it was one which all persons who had paid any attention to the administration of the criminal law in this country for some years past, had agreed ought to be removed. The present Lord Chancellor had expressed the objections to the present system very pithily in a question which he put to 394 Baron Parke, before a Committee of the Lords in 1848. He said,—In a civil case, a party against whom a judgment is pronounced, however trifling the amount, has a right to an appeal in the shape of a writ of error, motion for a new trial, or an absolute right to a bill of exceptions; does it not appear hard, and certainly inconsistent, that in a criminal case, where his liberty, his character, and his life are at issue, he should be deprived of that right; and more particularly is it not so, where the case may be tried before a tribunal composed of persons not educated in a knowledge of the law?This was not a direct statement, but it might fairly be taken as an indication of Lord Campbell's opinion on this subject. Lord Denman, before the same Committee, pointedly said,—Supposing the Judge has made a mistake, it is against all principle to leave it in his breast whether it shall be revised or not.Before the same Committee Sir Fitzroy Kelly said, that he had moved for a return, with a view to his own Bill of 1844, of cases of misdemeanour, removed by certiorari, and tried in the Court of Queen's Bench, or at the Assizes, and he added,—I may state, that the general result, so far as my memory serves me, is this—that in about one-third of the cases in which motions were made, the verdicts were set aside; either by verdict of acquittal or arrest of judgment the accused was ultimately delivered. In another third, the verdict was in some way altered, but it did not appear what was the ultimate result. The remaining third were cases in which the verdict was affirmed. To the best of my recollection, confirmed by my own experience, for many years something approaching to one half of those cases in which the verdict was set aside, and ultimately the party accused was delivered, were cases in which the jury had come to what the Court afterwards deemed a wrong conclusion in point of fact. That would be one-sixth part of the whole. Something approaching one-sixth part of the whole where the verdict was set aside as being against evidence.Now, if that was the case in such instances as these, which had arisen before Courts presided over by the highest Judges of the land, what must have occurred in other courts, such as the courts of assizes and quarter sessions? Was it not probable that least one-sixth of the verdicts returned were against the weight of evidence? He could also quote the authority of a Judge—Chief Baron Pollock—who lately presided at one of the most remarkable trials of the present day. It was material to consider what were his opinions when he was Attorney General, and when he was examined before the Criminal Law Com- 395 mission. In his evidence, given before that Commission, in 1835, after referring to the fact that Mr. Wilde, one of the sheriffs of London, while in office, for seven months, had been instrumental in saving the lives of seven men under sentence of execution, for crimes of which, it afterwards turned out, they were innocent, upon an investigation of their cases by Sir Robert Peel at the Home Office, he says:—It has always, since this occurred, been impressed upon my mind as a very appalling fact that in one year so many persons were saved from public execution, for which, I believe, most, if not all of them, had been actually ordered; and I am persuaded, and have been ever since I knew those facts, that, unless the practical difficulties are insuperable—which I do not apprehend would be the ease—some legal constitutional mode ought to be adopted by which errors and mistakes, from whatever source arising, should be corrected in criminal as well as they may now be in civil cases. I am aware that if a power of a new trial were afforded in criminal cases, more time might occasionally be consumed in such applications than frequently is devoted to the original inquiry; but I think it is impossible to be aware of the notorious fact that in cases of misdemeanour the Court of King's Bench has felt itself compelled to grant a new trial in many cases, which have been followed up by a satisfactory acquittal, without feeling that in cases of felony, some legal provision should be made for a similar failure of justice; and ever since my attention has been drawn to the cases which occurred while Mr. Wilde was sheriff, I have been very anxious to call the attention of the Government to the necessity of administering some practical remedy to the acknowledged evils of the present system, and undoubtedly had not this Commission been now sitting, which is so well calculated to present the subject to the attention of the Legislature, and to devise deliberately some mode of amending the criminal law on this point, I should have felt it my duty as Attorney General, officially to bring the matter under the notice of the Government, and have endeavoured to procure some legal and satisfactory mode of obtaining a reconsideration of a verdict in a criminal case, without throwing all the labour and responsibility on the Secretary of State, who is called upon to interpose the mercy of the Crown in cases where the appeal ought rather to be to the justice of a legal tribunal.' The Criminal Law Commissioners, after taking the evidence of all the competent men of the day on the subject, and considering it several years, at last, in 1845, reported in the strongest terms in favour of the right of appeal. They say, in their 8th Report 'the question whether a motion for a new trial ought to be entertained is one of high importance to the due administration of criminal justice. It involves two main points—first, whether such a course is material for the purpose of distinguishing between guilt and innocence; and, if so, whether any reason warrants the rejection of such a test. If any doubt should exist on the first question, it is one which would most properly be decided by experience. On this point, however, there is no room for doubt; actual ex- 396 perience, not only in respect of civil, but oven of criminal proceedings, where the test is allowed to operate, proves its importance. In truth, so long as human judgment is fallible, it must be necessary to use means for the correction of error and mistake. It may be said that this cannot be done without delay and expense. It cannot, however, be doubted that deliberate justice, although necessarily attended with more or less of delay, is preferable to the injustice incident to improvident haste, and necessarily resulting from the neglect of reasonable means for the exclusion of error. The expenditure of labour and cost in criminal investigations can scarcely be placed in competition with the evils which inevitably flow from want of due caution. The question resolves itself mainly into this, whether the cost of correction can fairly be placed in competition with the evils likely to result from the want of correction. Looking, therefore, to the nature of the inquiry, it is quite as likely that error or mistake should occur in the investigation of a criminal charge as on that of a mere civil claim. As the consequence of error in the one case and the other, it cannot be denied that a failure of justice in a criminal case, where it may concern not only property, liberty, but even life itself, is of much more serious importance than in civil cases, where a mere question of property is concerned. These positions and their consequences are too obvious to be dwelt upon; yet, admitting them to be true, the conclusions must necessarily be that the precautions necessary to exclude error in the one case are a fortiori necessary in the other. If with a view to exclude the possibility of injustice, a man is to be allowed the benefit of a new trial where property to the amount of £20 is at stake, it is hard to deny him protection to the same extent where his life is in jeopardy. If the question whether a pauper is settled in parish A or parish B is not to be determined without a power of appeal to the Court of Queen's Bench, it is harsh to condemn him to be transported for life to a penal settlement without power of appeal.' Of the appeal to the Home Office the Commissioners disapprove, as 'Not unfrequently, however, unjustly the subject of popular jealousy or suspicion.'This then was the deliberate judgment of the Criminal Law Commissioners, who had had an opportunity of reviewing the law of England, and in their reports reference would be found to the law of almost every country to whose jurisprudence this country was in the habit of paying respect. That Commission had come to the conclusion that there ought to be some means besides an appeal to the Home Secretary, for correcting the injustice done by a wrong decision. It was quite clear that the weight of the authorities was in favour of some other tribunal besides the Home Office. But, in addition to those authorities which he had already cited, they had the opinion of a gentleman, who was admitted to be the most learned criminal lawyer in England—Mr. Greaves—who had drawn up the Report on Criminal Pro- 397 cedure. So sound a lawyer was he considered, and the Government of the day had so great a respect for his opinions, that he was employed by them to draw up this Report. In this Report which was presented in 1856 or 1857, he said,—The system itself, however, is such as cannot fail to lead to mischievous results, even though it be administered in the best manner, and with the most laudable motives. In the first place, the investigation is a private one, and consequently facts may there obtain credence which, if disclosed, might be contradicted or explained. Secondly, it is very doubtful whether there be any jurisdiction to administer an oath on making an affidavit to be submitted to the Home Office. This, in addition to the secret mode of proceeding, no doubt leads to false statements being made, and that, too, with perfect impunity. Thirdly, no notice of the application, it is believed, is ever given to the prosecutor. The truth is that the law, allowing no direct means of obtaining a new trial, or revision of the sentence, an application is made to the Home Office in every case where any materials can be obtained for that purpose, and if sufficient materials can be produced to throw a reasonable doubt upon the correctness of the verdict, the Home Office is placed in a most unfortunate position, as there is no power to order a new trial or fresh investigation to take place. Three courses alone are open—to let the sentence be executed, to grant a pardon, or to mitigate the sentence. It is to be remembered that the very cases in which the Home Office is most likely to be misled are ever the most important of all, and therefore it is of the last importance that they should be properly determined, and not only so, but in such a manner that the public may be convinced that they have been so determined. Nor is it be forgotten that it is at least a very doubtful question whether it be expedient that the solemn verdict of a jury, given after an open trial, should in any case be treated as a nullity, unless the proceedings are such as to satisfy all reasonable persons that such verdict was erroneous.Such was the opinion of Mr. Greaves, who when examined himself before the House of Lords in 1848 stated that every wrong ought to be redressed before a proper legal tribunal. Wrongs were done in criminal as in civil cases, and parties should have a right to redress in criminal and civil cases. Mr. Greaves was asked what remedy he proposed? He said, "I propose as a remedy an absolute and unconditional right to every person who is convicted to appeal to one of the common law Courts of justice at Westminster Hall." He (Mr.M'Mahon) did not believe it was necessary that he should trouble the House with more authorities. They had heard him read the opinions expressed in reference to this question by Lord Denman, the Lord Chief Baron, and Mr. Greaves; and, in fact, he was not aware of any authority of eminence in this country who had ever declared in 398 favour of the appeal to the Home Office as against the legally established tribunals of the country. In the Report of the proceedings of the Committee of the House of Lords, which sat in 1848, there was a question put to Mr. Baron Alderson by Lord Campbell, from which it might be presumed that no right of appeal in criminal cases existed in France or America. He should state that such was not the fact. In France a party convicted had, where a defect or mistake had arisen on any matter of law, an absolute right of appeal to the Court of Cassation. In Franco a party might be convicted by a bare majority, as in Scotland; but if it was expressly provided by the Code d' Instruction Criminelle, book 2, title 2, c. 4, article 351, that if the accused was convicted only by a simple majority "the Judges shall deliberate amongst themselves on the same point, and if the opinion of the minority of the jury is adopted by the majority of the Judges, so that in uniting the number of voices, this number shall exceed that of the majority of the jury and the minority of the Judges the opinion favourable to the accused shall prevail,"—and by the 352nd article it was provided. "If, except in the case provided for by the preceding article, the Judges are unanimously convinced that the jury though observing the forms are mistaken in substance—the Court shall declare that it supersedes the judgment and will remit the affair to the following session to be submitted to a new jury, of which none of the first jurors shall form a part." He was aware of an instance within the last two years, in which a Judge in the county of Hereford expressed a decided dissent from the verdict of a jury convicting an accused party of an offence, and stated that he would not pass sentence on the man, but would refer the case to the Home Office. In France the Judge would have an absolute right to postpone the case to another session, and have the party tried before a new jury. In America the uniform rule for many years, at least since 1830, had been to grant a new trial in criminal cases, and thus to extend to those cases the same principles which were established in civil causes. In an American work of very high authority—Wharton on the Criminal Law, it was said that in recent times with the exception of a few cases in which Mr. Justice Story and another Judge attempted to disturb it.The uniform and unquestioned practice has 399 been to extend to criminal oases, so far as the revision of verdicts is concerned, the same principles which have been established in civil actions.And that though the Judges there hold that by the principles of the common law every Court of oyer and terminer and goal delivery can grant a new trial, yet, to prevent all doubt, in most of the States provision is made by statute for the purpose. The American Judges say that it is more consistent with the spirit of humanity which pervades the common law that a new trial should be granted by the Court than that the prisoner should depend on the mercy of the executive. One of the grounds on which such a practice was not followed in England appeared to be the mistaken belief that courts of assizes and quarter sessions were inferior courts. In America the position of these courts was perfectly understood. Although the criminal courts and quarter session courts were subordinate to the Court of Queen's Bench, yet they were not inferior courts, and were empowered with authority to do justice by setting aside wrong verdicts. About ten years ago it was established by the decision in a case which originated in the Recorder's court at Chester, that this was a mistaken principle, and that courts of assize, of quarter sessions, and the other criminal courts, though they were subordinate to the Court of Queen's Bench, yet were not inferior courts in the proper meaning of that term. In New York, so long ago as 1830, it had been held that a Court of oyer and terminer and gaol delivery was not an inferior court, and was, therefore, invested at common law with full power to grant a new trial on the merits. Chief Justice Marcy in pronouncing this decision had beautifully explained the point which was now in issue. He said:—It is a settled rule of law in England never to grant a new trial in cases of treason and felony. If by the error of the jury or the Judge an innocent man is condemned, he is sent to the mercy of the Crown for redress. This mercy is but a miserable relief for the injury he has suffered. It may save his property from forfeiture and himself from the ignominy of the gallows, but the foul blot remains on his reputation. Time does not obliterate it; the grave does not cover it; it is an inheritable curse that must and will be the portion of his posterity. It is mockery to tell a man who has been condemned that his redress is in a pardon. He feels, and over will feel, that he has received an incurable wound from that sword which he, in common with his fellow-citizens, had put into the hands of the magistracy for their protection. The policy in respect to new trials in criminal cases which the English courts have pursued has never been 400 countenanced by our courts, and would never be tolerated by our people.He apprehended that the principle adopted in America was the true principle—not only of law, but of justice and of general jurisprudence—consistent with common sense and common right; and he trusted the people of this country would not tolerate any longer the practice which had been pursued here. In Mr. Greaves' evidence before the Committee of 1848, that gentleman showed that in ancient times a man convicted had thirty or forty days, at least, to arrest the judgment, and suggested that the grounds of arrest of judgment were bad law or wrong verdicts. The Mirror of Justices, of the date of Edward I., was referred to by him, and the observation of Lord Coke, who cited the Mirror, and stated that the practice of granting time for arresting judgment "had gone in desuetudinem, and that great expedition was now made in pleas of the Crown concerning the life of man. Sed de morte hominis nulla est cunctatio longa." In modern times we seem to be departing from the humanity of our forefathers in that respect. The present Bill was an attempt not to innovate, not to establish anything new, but to return to the ancient usage of the law, and to depart from the brutal system which had prevailed, at least during the 16th and 17th centuries, when men were hanged for stealing thirteen pence, hanged for stealing 5s. worth out of a shop, or for picking a pocket when a party accused could not have a witness sworn on his behalf, and could not, although he were dumb, have a counsel to speak for him. The whole of that system was a disgrace to the country, and was gradually being removed; and he believed the Legislature would be wiping away a last blot from the escutcheon of the administration of justice and criminal law by following in this respect the example of the other countries he had named, and would thereby place the administration of our criminal law on a footing equal to that of any other country in the world. At present the granting of an appeal on points of law was altogether in the discretion of the Judge, and there was no provision whatever with regard to appeals on questions of fact, which he agreed with Mr. Greaves in thinking of even greater importance than those on matters of law. That gentleman, in his examination, stated:—If I must make an election between the two, I would certainly prefer an appeal upon facts to 401 an appeal upon law, because I am quite clear, in trials before learned Judges, that mistakes more frequently take place in matters of fact that in matters of law; and it is obvious to any one who considers the subject that mistakes in matters of fact generally go to the entire guilt or innocence of the prisoner, whereas a mistake in matter of law very frequently turns upon some technical point, where the prisoner has been guilty either of an offence of the same degree, or some one very nearly approaching to it; as, for instance, a man may have been convicted of a forgery, and the document set out in the indictment may have been misdescribed as an order, whereas it is a mere warrant for the payment of money. I only put that as an instance to show that a man may be guilty, and escape through a mere technicality in point of law; whereas, I think, when he is convicted wrongfully on a point of fact it goes entirely to the guilt or innocence of the prisoner.His Bill proposed to make the right of appeal no longer conditional, but to grant the party an absolute right both as to questions of law and fact. Sir Frederick Pollock, the present Chief Baron, whose opinion ought to be entitled to great respect, had given much attention to the consideration of plans by which the raising of mere technical objections, through which it was sought to defeat or delay justice, would be prevented, at the same time that an acquittal would be secured to the innocent. That learned personage having weighed the difficulties, was of opinion that the motion for a new trial was the only effectual remedy. He said:—One obvious course would be to adopt, in all criminal cases, the practice which is now open to the convicted party in case of misdemeanour before the superior Courts—namely, a motion for a new trial, founded upon a verdict being either against evidence or against the truth of the ease, as made manifest by affidavits to be submitted to the consideration of the Court, subject, of course, to such rules with respect to the reception of affidavits as the experience of the Courts in other cases have established. These remarks equally apply to inferior Courts, who are incapable of granting a new trial in misdemeanours as well as felonies. During the last session I moved for a return of the result of all prosecutions for perjury and conspiracy in the Court of King's Bench since the year 1800, together with the result of the prosecutions as to new trials, and the cases in which parties have been called up for judgment, The session ended before that return was complete, but I allude to it now for two reasons. I have very little doubt it would prove, by the number of instances in which new trials have been granted, and the defendants have been afterwards acquitted, or the prosecutors have declined to go on with the prosecution, that the motion for a new trial is essential to the administration of justice in criminal as well as civil matters. The same mischief obtains in criminal, against which a new trial is the only protection, as in civil cases, and the only remedy is an application for a pardon where sometimes there ought to be an appeal for justice. If no better mode can be 402 adopted, I think there ought to be allowed a motion for a new trial." (Second Report, Appendix, pp. 79, 80.)He would now come to the various remedies which had been proposed. His attention was first called to the subject in 1844, by a Bill which Sir Fitzroy (then Mr. Fitzroy) Kelly, introduced. The substance of that Bill was, that any person convicted wrongfully might appeal to any of the Courts at Westminster for a new trial, and the Court might, if it thought proper, order a new trial, and send the accused party back to be tried again. If a party had been tried at the quarter sessions, the Court would have no authority except to send him back to be tried again at the quarter sessions. If he had been tried at the assizes he must go back again to be tried at the assizes. The Bill also gave an absolute right to an accused party, if the Judge should misdirect in point of law, to take exceptions as in a civil case, and go to the Court of Exchequer Chamber or the House of Lords. That Bill was read a first time, but not a second time. The next Bill, which was introduced by the hon. Member for Dumfries (Mr. Wm. Ewart), Lord Nugent, and Mr. Aglionby, was, likewise, not carried beyond a first reading. In 1853 a Bill was introduced by Mr. Butt and Mr, Ewart, to secure an appeal in criminal cases; and that Bill, too, was only read a first time. The subject then dropped from 1853 to 1858, when he (Mr. M'Mahon), believing it one of great importance, asked the Member for Youghal (Mr. Butt) whether he might take it up; and accordingly, in 1858, the Bill which he now proposed to the House was carried to a second reading by the majority to which he had already referred. The difference between his plan and other Bills was this:—By the existing state of the law, if a party were indicted either at assizes or sessions, he might remove the indictment by certiorari, by giving security for the payment of the prosecutor's costs on being convicted. There was no limit to that now. Formerly it was thought that under that law only an indictment for misdemeanour could be removed; but in 1852 there was a very remarkable case where an indictment for felony was removed by certiorari, and tried at the civil side of the assizes. It was now, therefore, well known that there was no difference between misdemeanour and felony in being removed by certiorari. If, therefore a party were indicted for felony or misdemeanour, and 403 chose to remove the indictment by certiorari, giving security for the costs of the prosecution if convicted, it would be removed into the Queen's Bench, and tried at the civil side, having all the same incidents as a civil cause with reference to a new trial. There might be new trial after new trial until the Court above was satisfied that justice had been done. Now, the difficulty which had to be dealt with was this—If a party moved before the verdict, then he would have a right to a new trial until justice had been attained; but if he omitted to move before the verdict, then he had no redress whatever, except from the Home Office. It was only for about 200 years that new trials had been granted in civil cases. In 1655 was found the first instance. So lately as 1665 the Court of Queen's Bench refused an application for a new trial, on the ground that the damages were excessive, saying that the defendant had his remedy by attainting the jury. The practice of granting them dated only from Charles II. and James II. In the reign of James II. there was an instance of a new trial being granted in a criminal case—a case tried at the Hull Sessions or Assizes. This case, which was a charge of having used traitorous words—a case not at all likely to be favoured in those days—was removed after verdict, and the Court of Queen's Bench granted a new trial. But in 1811 an application was made to the Queen's Bench, in the time of Lord Ellenborough, for a new trial after conviction, and Lord Ellenborough, declaring it most important that that Court should not, without precedent and authority, intrude upon all the inferior jurisdictions of the kingdom, refused the application, on the ground that if granted there would be no end of such investigations. Lord Elleuborough and Mr. Justice Bayley were the only Judges present, and his Lordship disposed of this grave question by stating that "great inconvenience would arise if, without precedent and distinct authority, that Court was to infringe on all the inferior jurisdictions of the kingdom; and there was no reason to suppose that, if they were to do so in one instance, they would be restrained from doing so in all." He also expressed doubts "whether the Court had the power of entering into an examination of the verdicts which might be delivered in courts of inferior jurisdiction." In reply to those observations he would only say that Judges 404 of the Court of Queen's Bench were as fond of their own ease and as desirous of irresponsibility as any other persons; and he believed that, if the Court had been equally anxious to discover whether the power which was referred to was actually inherent in it, the decision would have been influenced by very different considerations. The remedy which he proposed was virtually only an overruling by statute of this division by providing that if on a trial a party were wrongfully convicted and had such just confidence in his own innocence that he believed upon a new trial he must be acquitted on the merits, then such a party might apply for a certiorari, give security for costs, and get another trial. This course was supported by the opinions expressed by the Criminal Law Commissioners in their Report, in which they said:—It appears to us that the law of England is at present very defective as regards the means afforded for the correction of errors in criminal proceedings, and especially such as are frequently, and, indeed, are almost necessarily incident to the trial by jury. In this respect, indeed, the law is inconsistent in entertaining the motion for a new trial in some instances, and denying it in others without any adequate reason for the distinction, and is thus faulty either in denying a new trial where it would be consistent with justice to grant one, or in granting a new trial where it ought properly to be withheld. The instances in which a new trial is grantable are confined to those where the prosecution is for a misdemeanour only, and is pending in the Court of Queen's Bench. We cannot but observe that the distinction thus made in the first instance between indictments for felony and those for misdemeanour pending in the Court of Queen's Bench is not warranted by any intelligible principle; it would indeed seem to be more reasonable that as the penalties for felony are usually more severe than those which attach to a mere misdemeanour, larger means for the correction of error should be afforded in the former case than in the latter. The distinction between cases of misdemeanour pending in the Court of Queen's Bench, and those pending in other criminal courts, seems also to be destitute of any sound principle. It may, perhaps, as to prosecutions removed from inferior courts into the Court of Queen's Bench, be said, that it is to be presumed that they are of more difficult investigation, and therefore that more ample means ought to be allowed for accurate inquiry and for the correction of errors. This may occasionally be so, but the presumption cannot possibly warrant so wide a distinction as that which is made in practice; the difficulties which give rise to the application for a new trial are frequently of a nature not to be foreseen, and often depend on the conduct of witnesses, or of the jury, or the direction of the Judge, or presiding magistrate, and not at all on the nature of the cause itself. Besides, as a defendant in a cause depending in the higher court has always the benefit of being tried before one of the Judges of the superior courts, the proceedings are less likely to stand in 405 need of correction than they are when the trial is had before an ordinary magistrate.His proposal was simply this: that if a party had been wrongfully convicted and felt such a just confidence in his innocence as to believe that upon a new trial he would be acquitted on the merits, he might apply for a certiorari and get a new trial in giving security for costs. The Bill which he proposed had been framed in such a way that it would not allow trumpery or technical objections to be taken to regular legal proceedings; and no man would be encouraged to move for a new trial who did not feel that on the substantial merits of his case he would be entitled to an acquittal. If, indeed, such objections were allowed to prevail the Courts of Westminster would have nothing to do but to hear applications for new trials from assizes and quarter sessions courts. An objection which had formerly been urged to the proposal was, that it would establish an appeal for the rich and not for the poor. But the practice which at present prevailed, which had existed for two centuries, and to which no objection was made, was open to the same exception, for it was virtually an appeal for the rich man alone, as the poor man must be supposed incapable of giving security for the costs of removing his case by writ of certiorari. What he proposed was in effect but to extend the privilege of the writ of certiorari after the trial had taken place. The real answer to the objection was that, if a man were believed by his neighbours to be innocent, he would not be suffered to remain without the means of moving for a new trial. No doubt, in Dr. Smethurst's case ample funds would have been provided by the public who believed in his innocence, had they been required. His Bill did not enter into minute details, but a remedy could be applied in the manner he was about to state. The security for costs was given to the Crown, and if the authorities connected with the Home Office believed that their exaction would operate in any particular case with harshness, nothing could be more easy than to waive the right. There was yet another way of meeting the difficulty. A clause might be introduced to provide that where the Chairman of quarter sessions or the Judge at the assizes reported to the Court of Queen's Bench that in a particular case there ought, in his judgment, to be a new trial, the security should be dispensed with. This would meet the case of the poor man as well as the rich. He believed that no substantial objection ex- 406 isted to the Bill, which would, if carried, have the effect of reviving an ancient and humane principle in the administration of justice, of assimilating in a beneficial manner the laws of this and foreign countries, and of putting a stop to the excitement which was at present raised in the public mind whenever it became necessary to make an application to the Secretary of State for the Home Department. By other Bills it had been proposed to make the appeal generally to any of the superior courts; but, regarding the Queen's Bench as the Court which exercised a supreme control in criminal matters, he believed that as long as that system was upheld, to that court likewise should appeals continue to be directed.
§ MR. W. EWART
, in rising to second the Motion, said he should have some difficulty in doing so if he were understood to pledge himself to the details of the Bill, to which the legal Members of the House would probably discover objections; but adhering as he did to the principle that the power of appeal in criminal cases ought to exist he had great pleasure in seconding the Motion. Many years ago he had introduced a Bill for a similar purpose, which shared the fate of others superior to his own, and he, therefore, hoped the present measure might successfully accomplish this most desirable object. Many years ago, he had brought under the notice of the House cases in which persons who had been convicted and transported had afterwards to be pardoned by the Crown, and were illrequited for the suffering which they had undergone by a sum of money. He had hitherto been unable to procure a return of the number of cases in which the Crown had exercised its prerogative of pardon; but he believed that if, without injury to the public service, it could be granted, it would be more to the purpose than the return of the number of appeals in civil actions which had been moved for by the hon. and learned Member for Suffolk (Sir Fitzroy Kelly). He should strongly recommend his hon. and learned Friend (Mr. M'Mahon), to refer his Bill, if it were now adopted, to a Select Committee, which would examine witnesses and collect opinions as to the expediency of the several proposals on the subject of criminal appeals; and their labours would doubtless result in the production of some measure of a practical and beneficial character. With that understanding he had much pleasure in giving his support to the Bill, and to the humane and just object which it was intended to achieve.
§ Motion made, and Question proposed,—"That the Bill be now read a second time."
SIR GEORGE LEWIS
Sir, the importance of the question brought under the consideration of the House by the Motion for the second reading of this Bill cannot easily be overrated; for as it seems to me, the adoption of the principle on which this Bill is founded must completely alter the whole character and operation of the criminal law as now administered. Notwithstanding the importance of the subjects which we discuss in Committee of Supply—holding as we do the purse strings of the nation, and disposing of the property of the subject—everybody, I think, must perceive that we have at present before us a matter of still greater moment from the effect which it exercises over these institutions on which the safety of life and property depends. I wish, therefore, to bring the matter clearly before the House, in order to induce it to give to it that attention which it certainly demands.
And before I proceed to consider the merits of the proposal which has just been made, as it might perhaps suggest itself to some Gentleman that the situation which I hold would bias the opinion which I am about to give respecting the propriety of granting an appeal in criminal cases, I would take the liberty of calling the attention of the House to the fact that the hon. and learned Gentleman does not propose to abolish the prerogative of the Crown, though he certainly appears to intimate that he would be able to render its exercise to a considerable extent unnecessary; he does not substitute anything, he merely adds one step to the criminal procedure of the country. My belief is, that if this Bill is passed, as at present framed, it will have very little practical operation, and that the duties of the Home Secretary will remain very nearly what they are at present. On the other hand, I can conceive that arrangements might be made which would lead to the complete relief of the Home Secretary from those painful and embarrassing duties which are cast on him by the revision of criminal sentences. For myself, I can declare—and I dare say that I shall have the assent of right hon. Gentlemen who have filled in former years the office which I now hold—that there is no part of its duties which are more painful to me, about which I feel greater anxiety, or as to which there is less reward to be gained in public estimation than the revision of criminal sentences. Consequent- 408 ly, if I were to be guided merely by personal feelings I should give my vote in favour of any measure which tended to diminish the frequency of the exercise of that class of duties. But on a question of this sort I hope I may be believed in the assertion that I have endeavoured to form a perfectly sincere opinion, without reference to any personal feelings or individual bias, and that the sentiments which I am about to give expression, except for the greater consideration which I have necessarily been obliged to bestow upon the subject, would be exactly the same were I now sitting on the opposite side of the House.
The hon. and learned Gentleman by whom this measure has been introduced has said that all authority is in favour of criminal appeal. He has not shown one practical grievance, but has relied on authority for the establishment of his case; and then taking a view of the remedies that have been proposed he says that his own is the best, and calls on the House to adopt it. In the study that I have given to the subject I have been led to the conclusion that the weight of authority, so far from being, as in the opinion of the hon. and learned Gentlemen, favourable to the change, is decidedly opposed to it. He referred, I think, to the Committee appointed in 1848 by the House of Lords to consider the Criminal Law Administration Amendment Bill. Baron Parke and Baron Alderson were examined before the Committee on the very question to which this Bill refers, and both gave a very decided opinion against criminal appeals, that is, the power either of the Crown or the prisoner to move for a new trial in criminal cases. That opinion was not only concurred in without any modification, but was even stated in stronger terms by Lord Denman, who was then Lord Chief Justice, Lord Lyndhurst, and Lord Brougham. The evidence of those two eminent Judges was sent round to the other Judges, with a request that they would give their opinion on the question referred to; and the following Judges assented to the opinion of Barons Parke and Alderson,—namely, Mr. Justice Patteson, Mr. Justice Coleridge, Mr. Justice Wightman, Mr. Justice Erle (now Chief Justice of the Common Pleas), Mr. Justice Coltman, Mr. Justice Maule, Mr. Justice Cresswell, Mr. Justice Vaughan Williams, Lord Chief Baron Pollock, Mr. Baron Rolfe (the late Lord Chancellor)—altogether by twelve Judges, besides the 409 Lord Chief Justice. I think after this statement the House will hardly he of opinion that the weight of authority is on the side of the hon. and learned Member who has introduced this measure. The chief argument put forward by the advocates of criminal appeals is, that there is not sufficient ground for the distinction, as regards new trials, between the procedure in civil and that in criminal cases, and not the criminal should he assimilated to the civil law in that respect, and this is, in a few words, the ground on which the hon. and learned Gentleman has rested his case. I admit there does appear to be a certain primâ facie presumption in favour of this assimilation; but it is, nevertheless, a fact that the almost universal practice throughout the civilized world is in the opposite direction. Russia, Austria, Spain, Naples, Saxony, Holland, Sardinia (except in cases relating to the press), Tuscany, Modena, Rome, Sweden, and Denmark have no trial by jury, and in those countries there is no question of a new trial in a criminal case. In the German States, in which trial by jury is established, and in the kingdom of Greece, the law sanctions criminal appeals in three cases—first where two persons have been convicted for the same offence; second, where, after a conviction for murder or manslaughter, the person supposed to have been killed is proved to be alive; and, third, where some of the material witnesses against the prisoner have been subsequently convicted of perjury. This shows that even these countries that have trial by jury do not go very far in the permission they grant for appeals in criminal cases. In France and Belgium, the privilege of appeal in criminal cases is carried a little further. If the Court immediately after a verdict has been given, and before sentence has been pronounced, are unanimously of opinion that the jury was mistaken in declaring the prisoner guilty, they may send the case to another jury; but the Court possesses this power ex officio, to be used at their own discretion, no one has a right to make any application to them to exercise it, and the Court itself can only take this step immediately after the verdict, and before the sentence. That is the furthest extent, as far as I have been able to discover, that the law goes, in any continental country, with regard to criminal appeals. The hon. and learned Gentleman has referred to the Court of Cassation in France; but he should remem- 410 ber that that Court has only jurisdiction as to matters of form, and that there is no appeal to it on matters of fact. It has merely jurisdiction casser—to quash, as we term it—a proceeding on the ground of its informality—not to grant a new trial on any matter of fact, or to hear any new matter. Excepting in the cases before enumerated, there is no appeal as to matters of fact. The case of the Lemoines is an illustration of this arrangement:—The appeal to the Court of Cassation of Madame Lemoine against the sentence of twenty years' hard labour, pronounced on her by the Court of Assizes of Tours, for burning alive her daughter's illegitimate child, came on yesterday. As is always the case in appeals to the Court of Cassation, it was based entirely on technical grounds; and in this case they were:—1. That the forms prescribed for the deliberations of juries and the prescriptions of Article 343 of the Criminal Code, had been violated by the jury having publicly proceeded to the election of a foreman, on the juryman designated by lot for that post having declined to accept it, whereas the selection of foreman ought to have taken place in private. 2. That certain articles of laws of the 24th of April, 1790, and the 20th of August, 1810, had been violated by the minutes of the trial not setting forth with sufficient clearness that the verdict of the jury had been publicly read. The Court, after hearing pleadings, decided that the reasons assigned were not sufficient to invalidate the condemnation, and it rejected the appeal.The hon. and learned Member (Mr. M'Mahon), said that by the law of the United States there was no distinction between civil and criminal appeals, but he did not give his authority for that observation.
SIR GEORGE LEWIS
—Well, I can only say I have referred to Kent's Commentaries on American Law, I can find not the smallest trace in that work of any power to move for a new trial in criminal cases; and I have considerable difficulty in believing that any such power exists. I, therefore, venture to affirm that the distinction between civil and criminal cases with regard to new trials is recognized almost universally in all countries whether they have trial by jury or not. I do not wish to press the argument from usage and custom to a greater extent than this—that there could not have been such a general and constant acquiescence in a matter affecting the lives and fortunes of the entire community unless there were some good reason for the distinction. What that reason is I shall not state simply 411 on my own authority, but shall rely on the opinions of several eminent lawyers. Before the Committee of 1848, Lord Denman expressed very succinctly his reason for the distinction, he said:—What I would state in a word, as my objection to the general power, is that there would be no antagonism; there are no adverse parties as in civil cases.And that principle is explained somewhat more fully in the letter of Mr. Baron Rolfe, now Lord Cranworth, addressed in answer to the circular letter of that Committee:—With respect to the inexpediency of any right of appeal in criminal cases I beg leave to add, in addition to what has been stated by Baron Parke, that a new trial would very rarely indeed be practicable. In civil cases the plaintiff has a direct personal interest in the result of his cause, and when a verdict obtained by him is set aside, and a new trial is ordered, he is obliged, in order to gain the object of his suit, and save himself from the obligation of paying the defendant his costs, to take proper steps for bringing all necessary witnesses to a second trial. But this is not the case in criminal prosecutions; a large proportion of prosecutors come forward only because they are bound to do so; the whole proceeding is rather a burden imposed on the prosecutor than a measure which he voluntarily adopts for the sake of personal redress; and I conceive that in nine cases out of ten when a new trial is ordered there would be so much difficulty in getting the prosecutor and witnesses together that no second trial could efficiently take place.These, then, are in general terms the grounds of the difference which has hitherto been observed between civil and criminal trials. It may be urged, however, that, while there is some weight and strength in the reasons for the distinction between the two classes of cases, there is still a great practical grievance to be remedied—that there is a large number of improper convictions by juries, and that there ought to be some judicial means for revising them. But will any Gentleman present take upon himself to affirm the frequency of wrong convictions by juries in criminal cases? If not, the whole groundwork of the proposed measure fails. I will quote the views of one or two eminent legal authorities on this point. Baron Parke, now Lord Wensley-dale, when examined before the Committee, said:—I think that the complaints of the present mode of administering the criminal law have little foundation, for the cases in which the innocent are improperly convicted are extremely rare. Some, no doubt, there are; and I consider it is impossible in any human system of administering justice to avoid such misfortunes occasionally. There are many cases in which the guilty escape, but very few in which the innocent 412 are punished; and having now had more experience upon the bench in the administration of criminal justice than any other Judge I can say for myself, that I can hardly call to my recollection any case with which I am personally acquainted in which I think that a person really innocent has been convicted by the jury.Lord Denman, whose authority and experience will be hardly disputed, expressed a similar opinion:—Juries are extremely unwilling to fall into the error of wrongly convicting. I believe there are a great many very wrong acquittals, and even conscientiously sometimes, from good motives and very respectable feelings, but unfortunately contradicting the truth, and bringing the administration of justice into some contempt, and giving impunity to great offenders.Lord Brougham coincides in that view,—My impression and belief," he said, "most undoubtedly is that there are very rare occasions indeed on which there is a wrong conviction.And Justice Wightman also said,—As far as my experience goes, I entirely concur with Baron Parke in thinking that the conviction of a really innocent person is so rare that there is practically no sufficient necessity for applying a remedy which would be attended with such obvious impediments to the due course of criminal justice.The weight of evidence is, therefore, I contend, in favour of the belief that wrong verdicts in criminal cases, at least when they are against the prisoner, are of rare occurrence. But if a wrong verdict is given, and the Judge is dissatisfied with it, what is the almost universal practice? It is that the Judge communicates his dissatisfaction to the Home Secretary; and I find it staged by Baron Parke, and assented to by Lord Lyndhurst and Lord Brougham, that such a Report is universally acted upon. [Sir GEORGE GRET: Hear, hear!] My right hon. Friend (Sir George Grey) who has had much greater experience as Secretary of State for the Home Department than I have, assents to that statement. I maintain, therefore, that no proof of any practical and substantial grievance has been brought before the House, and that none really exists.
Descending from these general grounds, the hon. and learned Member referred to the case of Smethurst as an illustration of the necessity for a measure such as he has introduced; but I must say I entirely differ from him as to that case affording any ground whatever for the adoption of criminal appeals. The case was a difficult one, undoubtedly, and it was my duty to give the closest attention to it, and do my best to master its details; but I cannot 413 discern in the circumstances of that case any argument whatever in favour of a Court of Appeal. I think I may say with the utmost confidence that had application been made to the Court of Queen's Bench under the terms of this Bill, within the first four days of the term after last August, for a new trial on the ground of misdirection by the Judge, it would necessarily have failed. The case, I believe, was left by the learned Chief Baron to the jury—and I speak not only my own opinion, but the opinion of persons much more competent to judge than I am—with perfect legal propriety. And I confidently venture to affirm that no Court would have entertained an application for a new trial upon the ground that the verdict was contrary to the evidence. My advice to Her Majesty to grant a pardon was entirely founded on medical considerations. There was scarcely any dispute as to the facts brought out in evidence, but the question turned on the medical inference to be deduced from them; and it was upon the opinion of eminent medical practitioners as to the bearing of those facts that I rested my advice. Medical science with regard to poisons is, unfortunately, in a somewhat imperfect and uncertain state; and the same imperfection and uncertainty are necessarily communicated to the legal questions with which it is connected. You might grant appeal after appeal, and have examinations before all sorts of Courts, and you would never get over the fundamental uncertainty which arises from the present imperfect state of medical science. Then, again, supposing that the propriety of granting a new trial in Smethurst's case had turned on the question whether the Judge was dissatisfied with the verdict of the jury, I am not prepared to say that that would have led to any result remarkably favourable to the prisoner. The Judge who tried the case was at first certainly inclined to think the verdict right, although he subsequently concurred in the course taken by the Crown in not carrying out the sentence of the law. Therefore I most confidently maintain that the case of Dr. Smethurst, properly understood, does not afford the smallest ground for the measure of the hon. and learned Gentleman. I will ask my hon. and learned Friend this question: Supposing there had been a second trial of Dr. Smethurst, and the second jury had confirmed the verdict of the first, is he of opinion that the function of the Crown was suspended and that the prisoner 414 ought to have been hung? Unless he affirms that proposition, he must admit that the Bill derives no support from the case of Dr. Smethurst. I must abstain altogether from allusions to more recent cases now pending decision, but I feel satisfied that if these cases could be submitted fully to the House it would be convinced that they have no more application to the present Bill than the case of Smethurst.
Another objection urged against the present system is that it involves a dark and secret investigation by the Home Office, and the hon. and learned Member has attempted to raise a prejudice against recourse being had to the prerogative of pardon by the mode in which it is exercised. But if any Gentleman votes for the Bill on the ground that the procedure of the Home Office is dark and secret he will do so on a wholly insufficient ground, inasmuch as the Bill does not in the slightest degree interfere with that part of the system, and does not propose to substitute criminal appeals for the prerogative of the Crown.
I wish now to show some of the objections to the remedy proposed, and the probable consequences with which the Bill is pregnant, in the event of its being passed. One of its first manifest consequences, which must strike every one, is the delay and uncertainty which it would import into the administration of criminal law. It is an elementary principle laid down by all writers on criminal jurisprudence that punishment is effectual in proportion as it is speedy and certain; and the result of the proposed measure would therefore be to deprive the administration of the criminal law of much of its effect. Upon this point Lord Brougham said before the Committee of 1848:—The criminal law depends for the effect, more or less, which it has in deterring from crime by example of punishment, upon the speediness with which execution of the sentence follows trial. But in this case you would have a prisoner found guilty at York in the first fortnight in July, but no sentence, even in the most flagrant case of murder, ever could he executed till the middle of November following. For certainly in every case of capital conviction, and I believe in every serious case, the moving for a new trial would be a matter of course.Another important feature in the question is the expense which the multiplication of trials and the necessary addition to the number of Judges would cause. Lord Brougham gave the following opinion as to the probable additions to the bench that 415 would be required in the event of criminal appeals being established:—Another thing is this—for the present number of Judges to do it would be utterly impossible. And then you come to the great difficulty of materially increasing the number of the Judges. Supposing the Bar could furnish the increased number—which is perhaps doubtful—but supposing it could furnish six more Judges to be added to the present fifteen—I beg to know how those Judges could be kept up to the mark for their business.I do not suppose, of course, that the hon. and learned Gentleman, or any legal Member of this House, would be influenced by the prospect of business at the bar being increased by the adoption of criminal appeals; but no less competent an authority than Lord Denman had pointed to considerations of this kind as reasons for the demand for a Court of Criminal Appeal. His Lordship said:—I think there is another reason for the outcry, which is a great desire, I think, on the part of many active and able persons attached to the law to see a new court and a new course of practice which would be popular and striking, and give a new scope for the display of their talents.The question of the costs incurred by new trials in criminal cases is not a mere question of expense, but involves the very essence of this measure, because it is only a mockery to give the right of appeal to a prisoner, and at the same time to insist upon his paying the costs. The hon. and learned Gentleman, or whoever drew the Bill, has indeed held out the prospect of the prosecutor being able to get his costs from the prisoner; but really the clause has almost the look of an ironical provision. The hon. and learned Gentleman must be aware that a motion for a writ of certiorari, to be sued out before one of the courts in Westminster Hall, is a remedy which, to the vast majority of persons convicted at quarter sessions and assizes, is perfectly nugatory and inaccessible. The cases in which prisoners would generally be able to avail themselves of the Court of Appeal would be political ones, or cases about which a good deal of public feeling had been excited. There would then be meetings held, and a great deal of discussion, not always of a very calm or sedate character; and then subscriptions would be raised sufficient to carry the conviction before the higher Court; but in most instances prisoners, debarred from availing themselves of this remedy by its costliness, would still be glad to have recourse to those dark and secret proceedings at the Home Office of 416 which the hon. Member complains; and, my opinion is, that the present administration of the law would continue with scarcely any alteration. The truth is, that if the House goes the length of conferring a right of appeal on every prisoner who is convicted at assizes or quarter sessions, they can scarcely hesitate before long to grant the principle that the expenses of the appeals should be defrayed from some public fund. That was the opinion given by Mr. Greaves, in his evidence before the Lords' Committee, for he did not shrink from advising that appeals should be conducted at the public expense, which he thought would be moderate. Of that, however, the House will itself be the judge. At all events, it must understand that if the Legislature confers an absolute right of appeal on every prisoner that is convicted, it cannot hesitate to enact that his costs shall be defrayed out of some public fund—either out of the county rate, or out of votes granted for that purpose by Parliament. With a view to show how utterly nugatory an appeal would be without such a provision, I will refer the House to the extensive class of offences with reference to which an appeal is already given—I mean those for which persons may be summarily convicted. I may first remark, however, that the course of legislation has not recently been in favour of conferring this light of appeal to the quarter sessions. Thus, the Aggravated Assaults Act, under which more than 2,000 persons were convicted in the year 1858, and about 1,500 sentenced to imprisonment, generally with hard labour, allows no appeal whatever. In cases, however, where the prisoner possesses the right of appeal it is remarkable how seldom it is made use of. In the year 1858 no less than 18,630 individuals were convicted in England and Wales under the extremely general and rather arbitrary provisions of the Vagrant Act. How many of these does the House think appealed to the quarter sessions? Just ten. In the same year 7,379 persons were convicted of offences against the Game Laws, of whom only fourteen appealed; and out of 11,211 convictions for malicious trespass and damage of property only two appeals are recorded, of which one was rewarded with success.
The hon. Member has spoken about the propriety and necessity of assimilating our criminal to the civil law in regard to appeals; but has he proposed anything like 417 such an assimilation in his own measure? In civil cases the plaintiff and the defendant have an equal right of moving for a new trial; but in the Bill before us an unilateral right of appeal is given to the prisoner, but withheld from the prosecutor. But, if there is anything in the argument for assimilation, both parties should be endowed with the privilege of appeal. I am far, however, from recommending that the Crown should have any such right; I believe it would be highly disadvantageous, and I have no desire to see any innovation made in the ancient rule of our law, that a plea of autrefois acquit is to be held sacred, and that no person should be put in jeopardy twice for the same offence. It is vain for the hon. and learned Member to talk of assimilating civil and criminal procedure, if he gives an appeal to the prisoner and withholds it from the prosecutor. But I will take the Bill as it is drawn, and, supposing there be a unilateral appeal, I will ask the House to consider what would be the consequences. Upon that question I am able to give the opinion of some experienced Judges, which I think will have some weight with the House. Lord Denman said,—I think there are grave objections to anything which will give countenance to the opinion that wrong convictions are of frequent occurrence, and that a new court ought to be erected, or the present courts empowered to correct them by motions for a second trial. One consequence of such power might be a degree of laxity of juries in considering their verdict and less reluctance to convict on doubtful evidence, because the new trial might correct their mistake. And, after all, the second trial could not guarantee the security of the truth; the second jury is not more infallible than the first.Lord Brougham said,—Most undoubtedly if it were thought that you might set an error right by moving for a new trial, there would be a good deal less of that sort of awful feeling of responsibility under which both Judge, prosecutor's and prisoner's counsel, and jury act; whereas at present they feel that what they are doing is remediless if any error is committed. I believe you would have very frequent errors committed. I am quite sure upon jurors it would have an effect, and this is a question about jurors rather than about Judges.The English system of criminal jurisprudence is marked by a singular tenderness towards the person accused. It is always understood that the prosecutor's counsel abstains from any strong remarks in his speech; the Judge takes care that no un- 418 fair advantage is taken of the prisoner, and if there is a doubt it is given in the prisoner's favour. There is a total abstinence from that system of—1 hardly like to say, "hunting down"—a prisoner of which we have sometimes met with instances in foreign courts; but, at all events, there is great forbearance shown in the manner in which the case is pressed against the prisoner. It is not accidental, but it is owing to the feeling of all persons concerned that the verdict on the facts is absolutely irreversible. As regards questions of law, as the hon. and learned Member has stated, there are full means of appeal at present. In order that the House may see how favourable is the position of the English prisoner compared with that of a prisoner under some of the most civilized systems of law on the Continent, I will read a statement which draws a contrast between the English and French systems of jurisprudence. I do not do this with the view of making any invidious comparison between the two systems; I assume that there are sufficient grounds for the rules of criminal law which are followed under the highly civilized system of jurisprudence which exists in France; but I merely wish to draw a contrast for the purpose of showing what is the position of the English prisoner compared with that of prisoners under other systems, and that it is possible materially to alter that position to his disadvantage.
That is a perfectly accurate description, and it may be added that there is a rule in English law which is never departed from, that a penal statute must be construed strictly. If there is any doubt as to the verbal construction, that doubt always avails in favour of the prisoner. What would be the position of the prisoner if the rules of law which the hon. and learned (Gentleman seeks to establish were substituted for the present law? The counsel for the prosecution would be able to say with truth, "Gentlemen of the jury, if your verdict against the prisoner should he wrong, he has an appeal, and it can he set aside; but if you acquit him your verdict is irreversible; therefore, incline to the side of severity, and not to that of mercy. If you are wrong, there is an appeal for the prisoner, at present at his own expense, though we hope it will soon be at the public expense; but if he is acquitted, the Crown and the prosecutor are concluded by your verdict, and the decision is unchangeable." The whole feeling of the Court, which every one familiar with the proceedings of a criminal court knows is tender and merciful towards the prisoner, would be reversed, and there would be found not only a sentiment, but a rational ground, for giving an advantage to the prosecutor against the prisoner.
- "1. In France all prosecutions are instituted and carried on by the public prosecutor; in England they are almost always left to private individuals, generally persons of limited means.
- "2. In France an accused person is put upon his trial by a report (called a mise en accusation) of magistrates or Judges (Tribunal d' Instructions): in England there must be the verdict of a grand jury or a coroner's jury.
- "3. In France an accused person is most rigidly questioned, both before and at his trial, not only as to the circumstances of the particular case, but as to other charges which may have been made against him, and as to all the events of his life. A history of him is given in the acte d'accusation, and his character, habits, and disposition, as well as those of his friends and relations, are minutely described, and he is examined as to all these matters by the President in the presence of the jury. As the trial proceeds he is called upon to explain the conduct imputed to him, and to admit or deny the particular facts alleged by the witnesses. In England no questions can be put to the accused either before the magistrate or at his trial, but he is at full liberty to make any statements which he thinks likely to be in his favour. The investigation is confined to the single offence with which he is charged, and previous charges, or even convictions, cannot be brought forward against him until the jury has decided that he is guilty of
419 that offence. His previous bad character cannot be given in evidence to prove his guilt, but he is allowed to bring it forward, if good, to prove his innocence.
- "4. In France the accused maybe found guilty by a bare majority of the jury; in England the whole number must concur; if one only refuses to join in such a verdict it cannot be pronounced."
The House must also bear in mind that if this remedy were afforded, although it would be practically unavailable in the great majority of cases without the assistance of public funds, it would be infallibly called into operation in all important cases. Happily, we live in times when State trials are of rare occurrence. We have not seen the law of treason called into action. Our lot has been cast in a peaceable and favoured epoch. There have been no recent disturbances of the public peace, and it has not been the painful duty of the Attorney General to proceed against persons for treason or sedition. But it is possible that in times of suffering, or divided public opinion, such occasions may recur; and I would ask the House to consider what would be the state of the criminal law if, after a State trial of great importance, it was competent for the prisoner, when con- 420 victed, to give notice of motion for a new trial within the first four days of next term, and then by affidavits, and all the means which could be set to work in political cases, to apply to the Court for a new trial? I would also ask whether the Judges would not be placed in an embarrassing and difficult position? I cannot but think that the operation of this remedy with respect to criminal cases of that sort is a matter for the serious consideration of the House, and that there are good reasons for maintaining the present doctrine of the law, that as a verdict is conclusive against the Crown, so it shall be conclusive against the prisoner—subject merely to the interference of the prerogative of mercy. We have not only English cases to deal with; there are important criminal prosecutions in Ireland, as well as in England. Everybody acquainted with Ireland knows that in cases which used to come under the Insurrection Act, and which are now commonly called agrarian offences, in which the feelings of the country are involved, there is the greatest possible difficulty in the administration of the criminal law. I certainly should be the last person who would wish that any innocent person should be convicted, and if convicted, that he should not have a proper revision of his sentence; but I ask any hon. Gentleman who is aware of the necessity of protecting witnesses before the trial, of removing them to a colony or some place of safety after the trial, and of the difficulty altogether which there is in administering a system of trial by jury for a particular class of offences in Ireland, at seasons when the public mind is somewhat agitated or excited, what would be the effect of the changes which the hon. and learned Member proposes by his Bill to introduce? Then, the Scotch law is also to be considered. In Scotland, a simple majority of the jury can find a verdict, and if a simple majority can find a verdict I hardly know how it would be possible, in cases of any difference of opinion, to refuse the appeal which the hon. and learned Member seeks. Certainly, if the present law can be defended with regard to Scotch cases, the arguments must be infinitely stronger when applied to English cases where unanimity of the jury is required.
These seem to me to be the principal consequences which would flow from the Bill of the hon. and learned Gentleman. I trust that the House will take them seriously into consideration, and then deter- 421 mine whether such a Bill is one to which they can give their consent. This is not the time for discussing the clauses of the Bill, and therefore I do not wish to dwell upon minute points; hut there is one clause, the 15th, which is worthy the attention of the House. By that clause the hon. and learned Member proposes to give the Court a power of entering a verdict of acquittal, after cause shown both by prosecutor and prisoner, without remitting the case to a second jury. Now, that certainly is a power which hitherto has been unknown to our constitution. That is to say, it is giving the Judges the power of reversing the decisions of Juries in criminal cases.
Before I sit down I wish to say a few words as to the bearing of the measure on the prerogative of pardon. The hon. and learned Member does not propose to alter or vary that prerogative; and therefore, whatever objections it is liable to will remain in full force, as far as the prerogative itself is concerned. But it is material to consider, if appeals are admitted in order to diminish the frequency of the interposition of the Crown in the way of pardon, what is the nature of that prerogative. We have heard of its unconstitutional character, of "the dark and secret" procedure by which it is brought into effect, of the Secretary of State not being able to cross-examine witnesses, and of his setting aside a verdict without going through the judicial investigation upon which the decision of the jury was founded. No doubt, all those objections stated in that naked manner have a certain degree of truth; but the House ought to remember that they are objections founded upon a partial view of the subject—that they are founded on the supposition that the Crown has a general power of revising the verdicts of juries. Now, the Secretary of State, or the Crown under his advice, has no power of aggravating the consequences of a conviction. The prerogative only extends to the mitigation or remission of a punishment. The Secretary of State can never put on the black cap. He is not armed with the sword of justice. He has no authority in any instance for making the condition of a prisoner worse. He has only the power, as I stated before, of mitigating the effects of the verdict of a jury. We hear on certain occasions much of the mischievous effects of official forms, and if any technicality of office produces any inconvenience it is stigmatized as "red tapism"; but, when it comes 422 to a question of mitigating the sentence of a prisoner nothing is said of red tape or official forms—we are told, on the other hand, that judicial forms are of the utmost benefit. Let the House remember that the appeal to the Home Office is cheap, direct, rapid, and unaccompanied with any official forms; and that whatever importance they may attribute to the cross-examination of witnesses, or to the technical rules of a court of justice, it is of essential advantage to the poor prisoner who has no means of feeing counsel for motions to obtain writs of certiorari that his access to the Home Office should he easy and unencumbered with forms and expenses. However gloomy and secret may be the procedure of the Homo Office, let it he observed that from those gloomy and secret recesses no bill of costs ever emerges, and that the poorest prisoner in the country may, at the cost of a sheet of writing paper, obtain a revision of his sentence. I must say that I think the House will be indisposed to underrate the importance of that difference. It is of great importance that the relative bearings of this question should be understood. With their permission I will state to them a case furnished to me by Mr. Waddington, who has been for some years Under-Secretary in the Home Office, He says:—Some years ago, at the end of the Winter Assize, a very distinguished Judge called upon me at the Home Office respecting a case which he had just tried. A. poor old cripple, he informed me, had been charged with committing a rape upon a strong, healthy young woman; the offence was sworn by the prosecutrix to have been committed in open day, on the ground-floor room of a house looking upon a well-frequented street, and in which there were several other persons (some of them women) at the time, none of whom heard any noise, screaming, or struggling. The charge was not made until long after the alleged event, and to render the thing quite complete, the girl was pregnant, which she attributed to the violation in question. The Judge, as may be supposed, summed up most strongly for an acquittal; but the girl was what the newspapers call an 'interesting' witness, swore most positively, and carried the jury with her. The man was convicted and sentenced to a long period of transportation. The Judge now came in haste to express his entire dissent from the verdict, and to apply for a free pardon, which, after a very few days, the Secretary of State granted. I omitted to state that this poor wretch was a pauper, without a friend or a shilling in the world. How would the poor cripple have fared under the hon. and learned Member's Bill? He must first have employed an attorney to instruct a barrister to apply for a writ of certiorari to bring up the indictment, and have paid the expenses of the writ and its execution; the next steps would have been to apply to the Court (by attorney and counsel still) for a rule nisi for a new trial, and to serve one copy of the rule, when oh- 423 tained, upon the prosecutrix, and another upon the Attorney General.I observe that the hon. and learned Gentleman has taken great care to provide that a copy shall be served on the Attorney General.The next, to instruct counsel to make the rule absolute. The next, to get the record sent down again for trial by what is called a procedendo or a venire de novo, or something of that sort. The next, to apply to a Judge to be let out on bail, or remain in prison until the assizes. The next, to prepare his defence for the second trial. The next, to appear again, and hold up his hand as a culprit at the bar, and to tremble while the well-remembered story was repeated with the same appearance of guileless innocence as before. All this he must have done and endured, and he might, very possibly, have been convicted again after all.That is a perfectly accurate and unexagge-rated picture of what would be the consequences of the remedy afforded to poor prisoners by the hon. and learned Member's Bill. I think the House must see that it would be utterly impossible to abolish or take any steps to make any considerable inroad on the power of pardon, unless—which I cannot for a moment imagine—they would wish to place the great majority of prisoners in a far worse position than they are, under the present law, at the present time. That I may not be supposed to express any ill-considered opinion, I will call attention to another passage in the letter of Lord Cranworth:—I would further suggest that in my opinion, even if there were an unlimited power of obtaining a new trial in criminal as well as in civil cases, this would not supersede the present practice of applying to the Secretary of State. Such applications are not by any means confined to cases in which it is alleged that parties actually innocent have been convicted; and even where that is the ground of the application it is very often (I should say, so far as I have had any personal experience, generally) founded on some additional matter which by no analogy drawn from civil proceedings could have warranted the Court in granting a now trial. Your Lordship's long experience in Westminster Hall makes it quite unnecessary for me to call to your recollection that no new trial is ever granted on the ground of there being additional facts not brought forward on the former trial, unless the Court is satisfied by affidavit that the new evidence could not by reasonable diligence have been brought forward in the first instance.I think the House must he of opinion that on those grounds it will not be desirable to trench on the prerogative of pardon; but there are other reasons why it is necessary that a discretionary power should be maintained. The hon. and learned Gentleman says in his Bill that application must be 424 made to the Court within the first four day of the following term. Certainly there i an ample proviso at the end, which, if con strued liberally, would go far to nullify the preceding part of the clause. It provides that, under special circumstances, the Court may allow applications to be made at any time. That may be ten years afterwards, and until we have the benefit of the construction the Court may put on the meaning of "special circumstances," it is impossible to anticipate what would be the operation of this Bill. The House will observe that the question of time is of great importance with respect to the power of pardon. That power is frequently exercised not strictly in reference to the verdict of the jury. Where a sentence is of long duration, sometimes for the life of the prisoner, or for five, seven, ten, or more years, circumstances arise during the period of punishment which render it either necessary, or at all events highly expedient, that the power of pardon should be exercised. There is one case of not very uncommon occurrence where the medical officer reports that the prisoner cannot be longer confined without danger to his health or life, and it is always the practice to pardon, in order to save a prisoner's life. Then it sometimes happens that accidents take place on public works—that a prisoner, through the falling of a heavy stone, has had his hand or leg crushed, and is maimed for life. In cases of that sort the usual practice has been to make some remission of the prisoner's sentence. Occasionally a murderous attack is made by a prisoner on warder or turnkey, and another prisoner interferes to save life or otherwise to protect the officer. In those cases and in cases of striking good conduct it has always been the practice to have some consideration in mitigating the punishment. In fact, prisoners under sentence, when numerous, must form a sort of community—must be specially-governed by rules adapted to them; and it is necessary there should be vested in the executive some power of mitigating the extremes of legal sentences. For these reasons I think the House must see that under no circumstances would it be possible to abolish the prerogative of pardon or to substitute for the important power of mitigating the condition of the prisoner the expensive and circuitous remedy promised by this Bill. I must apologise for the length at which I have troubled the House. I have stated what are the objections to the Bill as it stands, 425 the principle which it involves, and the consequences to which it will probably lead. I leave the question with perfect confidence in the hands of the House, and with the full assurance that they will deliberate upon it with a general regard to the great and permanent interests of the country which are involved in a departure from the existing practice which this Bill proposes. I beg to move that the Bill be read a second time this day six months.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."
§ MR. DENMAN
said, that he had but very recently emerged from the humble position of a sessions barrister; but as he thought he might add one or two new considerations to this important question, and as the House might wish to hear the opinions of one who had been engaged in the active pursuit of that branch of the profession, he ventured to address to them a few observations. During an experience of many years it had frequently fallen to his lot to be the advocate of prisoners charged with indictable offences, and he believed he might safely say that, of hundreds who had been acquitted and convicted, in only one instance of conviction had it ever occurred to him to suspect that the verdict was not a right and true verdict. In that one instance he doubted whether the prisoner had been rightly convicted, and he expressed his opinion to a brother barrister sitting near him; and within two minutes he overheard his client use an expression which convinced him that, without the slightest doubt, he was guilty. As far as his experience went, he believed that criminal justice was satisfactorily administered; except in this one respect—that he had frequently seen persons acquitted who, he felt sure, were guilty. As to the Bill now proposed, he should not be sorry to see the question of whether there should be an appeal in criminal cases—some different kind of appeal from that which at present existed—re-discussed by the country and by a select Committee of that House. He did not concur with the right hon. Baronet, the Home Secretary, that there had been no alteration in the law bearing on this question since 1848; because, in consequence of the Committee of 1848, the House would recollect great changes had been introduced with regard to appeals from quarter sessions, and the criminal law had been placed in a very different position. 426 The practical question now was, whether the Bill of the hon. and learned Gentleman now before the House, if it were passed into law, would improve the administration of justice; and in his opinion it would do more harm than good. The provision with regard to the payment of costs by the prisoner made it obvious at once that it was a remedy for the rich and not for the poor. The question of costs required a great deal of consideration. If the prisoner could not pay them, who was to pay them? Either the country or the prosecutor. If the country paid the costs, how could that be reconciled with the present state of the law, which did not allow a man, even though acquitted, to obtain the costs occasioned by his prosecution? It would be giving an advantage to the convicted man over the innocent man who had been actually acquitted. If the prosecutor was to pay the costs, who would prosecute? One of the great difficulties in the administration of the criminal law was to find prosecutors willing to come forward; but this difficulty would be much increased if prosecutors were to have the prospect of being involved in motions for new trials, and of having to hang about the courts indefinitely until the matter was disposed of. Even when prosecutors did get their costs allowed them, everybody knew that as a general rule they never were indemnified for the expenses they incurred. A noble and learned Lord, who had presided over the Court of Queen's Bench, and whoso evidence on this subject had been somewhat misquoted to-day, once had his house broken into, and some of his most valuable property stolen. He prosecuted the thief to conviction, and, though all the expenses were on the most moderate scale, and not a. farthing more than necessary was spent, the prosecution cost him £73 beyond the sum allowed him for costs. This was by no means an uncommon case. He did not wish to be understood as being opposed to the fair consideration of any alteration, whatever that might be, in the present state of things, with which he did not feel the unmixed satisfaction which the right hon. Gentleman had called on the House to feel. On the contrary, upon a review of the whole subject he was of opinion that a case had been made out for a further consideration of this question. A recent case had at least shown that there was considerable ground for inquiry into the present system, and had the hon. and learned Gentleman's Motion taken that form he would have gladly sup- 427 ported it. But the practicability of such an inquiry would be considerably impaired by the passing of a Bill like this, which left altogether out of consideration one of the main difficulties of the subject—the question of costs. It might turn out on inquiry that the present system was the best that could be devised. He did not attach much value to the objection raised against the Bill, that to avoid unjust delay in hearing appeals it would be necessary that the Judges should sit all the year round. If it were once made out that criminals ought to have the right of such appeals, the Judges ought to sit all the year round, if necessary, to hear them. If any change were made, it ought to be of a much more comprehensive nature than that proposed by the hon. and learned Gentleman. To pass this Bill as it now stood would he to impede instead of assisting further consideration. It would be establishing a system of appeal for the rich, and not for the poor; it would lead to great delay, and render proper convictions more difficult than at present. In fact, if its provisions became law as they now stood, the old Horatian maxim would have to be altered, instead of rarò, it would beCrebro antecedentem scelestumDeseruit pede pœna claudo.
§ MR. PHILIPPS
said, that although he had not the good fortune to receive a legal education, it had been his lot to be concerned in the trial of prisoners for many years, and he should therefore have been very glad to be relieved of some portion of the responsibility attaching to that duty. It was not however the duty of the House to consider what might be agreeable to private feelings, but what upon the whole would be advantageous to the public at large. He could not perceive that this Bill would be the slightest improvement on the present system. Instead of conferring any benefit on prisoners, it would most likely deprive them of advantages which they at present possessed. It was unfortunately impossible, owing to the fallibility of human judgment, to exclude false evidence without at the same time excluding much which might be true; but if this proposed tribunal were established it would deprive prisoners of the advantage of equitable and moral evidence which might now be received in their favour. He had great doubts of a Court of Appeal being for the benefit of the accused; he was disposed to think that it would prove injurious to his interests. The measure would have 428 the effect of either ousting the Home Office of its jurisdiction or of postponing its jurisdiction to a later period after the appeal had been heard and dismissed; and he thought it would be a fearful responsibility for the Home Office to interfere with a verdict which had been sanctioned by two tribunals. No ground whatever had been laid for imputing blame to the proceedings of the Home Office. As far as his experience went, he had always found the greatest readiness and the greatest anxiety there to attend to all cases brought under its notice. Under these circumstances he must vote against the second reading of the Bill.
§ MR. EDWIN JAMES
said, if he were asked whether an Appeal Court ought to be established he should certainly answer in the affirmative: but if he were asked to decide whether the Bill before the House would prove a satisfactory solution of that difficulty in the criminal law of the country he should certainly reply in the negative, and that he believed the machinery it proposed to carry out its object was incapable of practical operation. Under these circumstances he was constrained to say he should vote for the Amendment of the right hon. Gentleman the Secretary for the Home Department. He could not, however, concur in all the arguments urged by the right hon. Gentleman in the admirable speech he had just delivered. The right hon. Gentleman, in opposition to the measure, had based one of his arguments against a criminal appeal on a case which had recently attracted much attention, without apparently perceiving that his illustration cut both ways. He argued that if a second Court were to be appointed, the council for the prosecution would for the future say to the jury, "You need not hesitate about convicting the prisoner, because there is an appeal which will set you right if you are wrong;" but surely he had forgotton that this might be said with just as much justice in reference to the present practice. The right hon. Gentleman, as he truly said, could not sit at the Home Office with the sword of justice, nor put on the black cap; but the Secretary for the Home Department did sit practically as a Judge of appeal, reversing the verdict of the jury and pardoning the criminal; and a counsel for the prosecution who would condescend to use such an argument might say now to a jury, "You need not be so careful about your verdict; convict the prisoner, and if you are wrong Sir George Lewis, 429 the Home Secretary, will reverse your decision." The Homo Office was, in fact a sort of court of appeal; and what he contended for was, that whatever was done by the Home Office in regard to setting aside the verdict of a Jury should be publicly known and the reasons that had influenced the Secretary of State openly stated, otherwise juries would become careless about discharging their duties; they would say it was useless for them to give such attention to these cases if their verdicts were to be set aside without any reason being given for reversing their decision. The machinery of this Bill was utterly impracticable. He was not a little surprised to find that the Court of Appeal which was already in existence—somewhat analagous to the Court of Cassation—in which seven Judges sat to decide on questions of law reserved for them, was utterly ignored, and the business of hearing these appeals was thrown on the Court of Queen's Bench, which had already more work than it could get through. According to the hon. and learned Gentleman a great proportion of the convictions took place at the summer assizes, and his Bill proposed that in the event of an appeal the convicted party should apply to the Court of Queen's Bench within the first four days of the next following term. On those days the Court already had to hear a great number of applications for rules nisi, so that, generally speaking, an appeal would be heard from six months to twelve after notice had been given of it. In capital cases the attorney, if he were up to his business, would of course take good care to set his appeal down at the bottom of the list, in order to prolong his client's life as long as possible; so that a murderer tried in July, 1861, might not get his second trial until July, 1862. To bring out a man for execution some twelve or fifteen months after his sentence had been pronounced, would shock public feeling, so that the ultimate result would be the impossibility of carrying capital punishments into effect. The applications for new trials would be on affidavits, and it would be so easy to make out a strong primâ facie case in affidavits, that it would be utterly impossible for the Judges, in nine cases out of ten, to refuse the application in the first instance. Cases of alibi, for instance, might be presented in a much stronger form in affidavits than in vivâ voce evidence. There would in this way be 500 or 600 cases standing on the paper for argument term after term. 430 The imposition of this labour on the Court of Queen's Bench would be impossible, and would prove subversive of the first principles of criminal justice. In the ninth section, the hon. and learned Gentleman proposed to enact that sentence might be immediately passed after the verdict was pronounced, and should be in force until the verdict was set aside; though very properly by the tenth section cases of capital punishment were excepted, otherwise it would be left to a man's executors to move in arrest of judgment; but in many cases the greater part of the sentence would have been undergone before the appeal could be heard. What would be the advantage of the right of appeal to a boy sentenced to three or four months' imprisonment and a whipping, or to a man who got six months' with a fortnight's solitary imprisonment? The disngreeble part would have been got through long before the appeal came on. He was sincerely desirous that this subject should be fully discussed by the House in order that a practical scheme for the establishment of a system of criminal appeal should be devised. For instance, an experiment might be made by giving the Secretary of State power to refer the consideration of capital cases to the Court of Criminal Appeal now existing. The responsibility in such cases was too great to be devolved on a single individual. This Bill was incapable of being worked, though the hon. and learned Gentleman deserved the greatest credit for having taken up what was a most interesting and difficult subject. He hoped the Government would take it into their serious consideration whether some alteration in the present system of reversing sentences might not be devised, which would have the advantages of publicity and regularity.
§ MR. GEORGE
said, he was desirous of doing full justice to the tone and manner in which his hon. and learned Colleague had brought forward the present question; but he could not support his Bill, which he thought most objectionable in its character. He must express his hearty concurrence in the able and comprehensive arguments of the right hon. Baronet the Secretary for the Home Department. After the best consideration he could give to the subject, he had come to the conclusion that there was no foundation for this measure, either in point of constitutional necessity or of criminal justice. He did not hesitate to say that, in his opinion, the Bill would be highly detrimental, if not ruinous, to 431 the administration of criminal justice in this country, and especially in Ireland. Such a measure, if passed, would be an indirect mode of repealing capital punishment—a question which should be considered in itself, and be treated according to its own particular merits. The Bill would also have the effect of introducing into our courts of justice a great increase in the crimes of perjury and subornation of perjury. He thought it necessary even in the interests of the prisoner himself, as well as of humanity, to oppose the passing of such a Bill as that before the House. Punishment, to be effective, should be prompt and efficacious. Now, the effect of this Bill would be to obstruct the course of criminal justice, and to render it impossible to administer it promptly. As he understood the measure, it was proposed that there should be affecting every place of criminal jurisdiction, power by certiorari to remove the case into a superior court for the purpose of having the questions, both of law and fact, re-argued before another tribunal, with the view of having the whole case again tried by another jury. If the privilege were given to the prisoner or defendant to resort to those proceedings, upon what grounds should it be refused to the Crown? In another point of view he thought this Bill most mischievous in its character. Every one acquainted with the course of criminal justice must be aware of the great difficulties placed in the way of the prosecution in obtaining convictions. It was often impossible to sift satisfactorily at the moment the evidence produced for the defence, and it was only incidentally that the prosecutor was able to discover how far the defence, whether in the shape of alibi or otherwise, was true or not. If those difficulties be great upon the occasion of the first trial, they would be absolutely insurmountable upon a second trial, taking place many months afterwards. The counsel for the Crown were bound to set forth the whole of their case at the outset without reservation, so that if there were an appeal the party accused would have time to study it in all its points, and where a dishonest defence was to be set up the witnesses would have time to fully instruct themselves how to swear up to all the points of the case, and would run much less risk of breaking down than on the first trial. No necessity whatever had been shown for a measure of this sort. Every one versed in criminal courts knew the tender care taken there of the interests of 432 the prisoner from the moment of his trial to the delivery of the verdict, not by his own counsel only, but by the Judge. Every precaution was taken to give him a fair trial—not the slightest advantage was taken of him; the Judge never failed to place prominently before the eyes of the jury the slightest point that might be favourable to him, and if any doubt was left on the mind of the Judge on any question of law, he was the first to desire to reserve it for the decision of a superior Court. Subsequently to the trial, if any ground for doubt arose whether the jury had not been hasty or mistaken in their verdict, the Judge and the counsel for the prosecution would be the first persons to bring the case under the notice of the Home Office, in order that the prerogative of the Crown might be exercised if need were. If this Bill were passed into law as it now stood, it would be impossible to refuse the Crown the same privilege as the prisoner. Under the present system, when an error was committed, it was on the side of mercy; but how it would be if this new system were established it would be difficult to say. What, if this Bill became law, would become of the noble principle of mercy that characterized our criminal law in the case of murder—that of autrefois acquit—under which, once a man was acquitted of the crime of murder, he could be never tried again for the same offence, however strong might be the additional evidence that had arisen? He much regretted that his hon. and learned Friend had brought forward this Bill, and if it were pressed to a division he should vote against it.
§ MR. MELLOR
said, that this was a question of deep importance to the administration of justice. It would be better to abolish capital punishment altogether than to make the distinction which his hon. and learned Friend the Member for Marylebone (Mr. Edwin James) had suggested, namely, to allow an appeal in capital cases, and none in any other criminal cases. He quite agreed that there was no analogy between criminal and civil cases, in respect of the mode of procedure. In criminal cases the onus probandi was on the Crown, but in civil it most commonly lay with the defendant. The Judge always charged the jury to give the prisoner the benefit of any doubt; but he much feared that the operation of any measure such as the present would be very much to weaken the sense of responsibility which the Judge and jury now felt in regard to the convic- 433 tion of a prisoner. He thought that the present feeling in favour of an appellate jurisdiction in criminal cases arose principally from the cases of Mr. Barber and Dr. Smethurst; but neither of them would have had the benefit of a revision of his sentence under any appellate tribunal such as that now proposed to be established. In Mr. Barber's case the facts that showed his innocence were not discovered for many months after the trial. Then, to take the case of Dr. Smethurst: in a civil case a new trial was seldom granted except the Judge was dissatisfied with the verdict; but, as he (Mr. Mellor) understood, the Judge was not dissatisfied with the verdict in Smethurst's case, although he thought the case was one in which the prerogative of the Crown might, under the circumstances, properly be exercised in Smethurst's favour. In criminal cases, where the Judge was dissatisfied with the verdict, it was better for the Secretary of State to grant a free pardon than that there should be a second trial. It was a principle of law that once a man was tried and acquitted he should not be tried again for the same offence; but if the proposition now before the House was acceded to, how could they refuse the Crown a second trial? Surely if the House granted the prisoner a second trial, they should not, if they had the interest of justice at heart, refuse it to the Crown. Believing that the proposition before the House would so alter the whole course of criminal procedure as to do mischief and cause confusion, without doing any real benefit to the class in whose favour the hon. and learned Member for Wexford was so anxious to interfere, he felt that he must vote against the second reading of the Bill.
said, he would not have troubled the House if he had not been anxious to guard himself, in the vote he was about to give, against being supposed to have an absolute opinion against any possibility of an amendment of the law in this direction. That, however, was very different from the question whether the present Bill was an amendment of the law. What the hon. and learned Member (Mr. M'Mahon) quoted as Sir Frederick Pollock's opinion, seemed to him to go to the root of the matter; for the learned Judge was favourable to an appeal if there had not been insuperable difficulties in the way. The hon. and learned Gentleman had not, he thought, done anything to clear those difficulties away, but had, on the contrary, 434 rather made them more prominent. The hon. and learned Gentleman could not shut out the question whether the Crown was to have a right of appeal as well as the prisoner. Now, for his own part, he did not think that anything could bring him to consent to a man being placed twice upon his trial for the same criminal offence. What was the House asked to do? Here was a complicated machinery, every clause of the Bill showing the difficulty that beset the framer of the Bill. His hon. Friend near him had spoken, for example, of the difficulty of obtaining witnesses. The hon. and learned Gentleman (Mr. M'Mahon) had made a strange provision in respect to witnesses. In cases tried at the summer assizes in July no motion could be made for a new trial until the opening of Michaelmas Term early in November. During this period of three months the witness would be under his recognizance; so that in the case of an offence committed perhaps in April, and which came before the Court of Sessions or Assizes in July, no witness could stir one step until November came and until he knew whether he was liable to be called again upon his recognizance. The captain of a ship or a person about to proceed to the Continent or elsewhere could not go abroad during this period, if he had the misfortune to be a witness in such a case. Would it be possible to keep the recognizances thus hanging over the heads of witnesses, or if it were, would the public endure it? It was true the hon. and learned Gentleman provided that if from any cause a party did not appear, and if no reason were given for his absence, the evidence he had previously given might be used against the defendant on the second trial. But it was most desirable that this secondary evidence should not be admitted unless in cases of absolute necessity, for the demeanour of witnesses affected their evidence with juries quite as much as what they said. The question of the witnesses was one of immense difficulty in dealing with criminal appeals. He could not agree that the question should be considered as one of expense. If justice was defeated under the present system, he did not think that the expense would be a ground for opposing an amendment of the law. But no attempt had been made to prove that any real injury or injustice to any class of persons was now committed. The question had been argued upon theoretical grounds alone, and upon the analogy in civil cases. But the hon. and learned Member had cut 435 the ground from under him in regard to the analogy in civil cases, because he would not let the Crown come in, but only the prisoner or defendant. There was great force in what had been said, that less care would be taken by juries in convicting prisoners than at present, if a prisoner had a right to demand a new trial. After an experience derived from trying nearer 3,000 than 2,000 prisoners before juries he could assert that they were very careful in convicting prisoners. He was bound to say that although there were many cases in which juries acquitted the prisoner where he could not agree with them, it was very rare indeed that in cases of conviction there was not good ground for the opinion of the jury. Then the Bill would be inoperative in the case of persons sentenced under certain circumstances to an imprisonment of three or four months; for their terms would expire before the appeal could be obtained. Now, it was not equal justice to say that persons sentenced to six months' imprisonment and upwards should have an appeal, which those sentenced to shorter terms were not to enjoy. He opposed this Bill also because it would open the door to an appeal by those persons who had money in their pockets, and shut out the great mass of prisoners who might be poor, and for whom no subscriptions could be raised. These parties would, indeed, be in a worse position than before, because they would lose the advantage they now had in the care and caution of juries. The jury might say, "Oh, if we are wrong the prisoner has an appeal;" while those parties, wanting means, would have no opportunity of getting an appeal. He regretted that the prerogative of mercy belonging to the Crown had been so much mixed up with this debate. There could be nothing more grievous and sad than that the prerogative of the Crown should be meddled with or narrowed in any way. He believed that this prerogative was well exercised. It was no doubt frequently exercised on grounds and on information not in accordance with the strict rules of evidence; and it would place those who advised the Crown in the exercise of the prerogative in a most difficult situation if they were called upon to act on evidence that had been refused by the Court of Appeal. Instead, then, of an appeal being of advantage to a defendant or a prisoner, he believed that it would be attended in this respect by quite a contrary result. Two years ago he declined to vote at all on this subject. It was then somewhat 436 new to the House; but being convinced that the present Bill would do more harm than good, he should vote against the second reading. The hon. and learned Member had quoted great authorities and high names in favour of his Bill; but if they had had these strong convictions, and hed not discovered great difficulties in the way of acting with advantage to the public he believed that those learned persons would have introduced some measure for the amendment of the law. The opinions quoted were abstract opinions, the value of which was somewhat diminished by the fact that they had never been carried out in practice. For these reasons he should oppose the second reading of this Bill.
THE SOLICITOR GENERAL
said, he wished to state some of the reasons that would induce him to divide against the Bill. With the exception of the hon. Gentleman who seconded the Motion for the second reading no pretence of any kind of support had been put forward by any hon. Member who had spoken on this proposition. The support of the hon. Seconder was of a very questionable character, for he had recommended the hon. and learned Gentleman (Mr. M'Mahon) to refer the matter to a Committee or Board of Inquiry, to see what could be done for the amendment of the law. The only real cases in which such a Bill could, by analogy with civil cases, be demanded, were either those in which the verdict was against the weight of evidence; or, secondly, those in which new and material evidence was discovered after the conviction, the existence of which was unknown at the trial. With respect to a Motion for a new trial in civil cases on the first ground, although the motion was made in banco before the full Court, yet practically it was an appeal to the Judge who tried the cause; because the Court seldom or never sent a cause for a new trial on the ground that the verdict was against the weight of evidence, unless the Judge who tried the cause was dissatisfied with the result. Under the existing system, if the Judge were of opinion that the verdict was against the weight of evidence, he would be appealed to by the counsel or by the friends of the prisoner. He would then be asked to make a report to the Home Secretary, and the course taken by the Homo Secretary was also guided by the opinion of the Judge; so that practically there was the same appeal with the same result as could be obtained by the present proposition. The other case, of the discovery of new evi- 437 dencc, was so infrequent that it did not call for new legislation, especially legislation attended by so much inconvenience. He had endeavoured in vain to ascertain what practical and tangible mischief the hon. and learned Gentleman proposed to get rid of by this Bill. He (the Solicitor General) admitted it was an inconvenience that the Home Secretary should have to decide such momentous questions as he had now occasionally to consider in criminal cases; and had his hon. and learned Friend brought forward a proposal to remedy that inconvenience, by transferring the consideration and decision of such questions to another tribunal, he should have given such a proposal his attentive consideration; but the Bill before the House went much further than that. His hon. and learned Friend had spoken of what he called the anomaly of removing criminal cases by certiorari into the Queen's Bench, and of motions for new trials in cases tried by that Court. But he would rather retain that slight anomaly than adopt the present measure, for the sake of obtaining a theoretical and superficial uniformity of procedure. It must be remembered that writ of certiorari was, in practice, only granted in cases in which it was believed difficult questions of law would arise. However anomalous the power of removing a cause by a writ of certiorari might now appear it was, no doubt, at the time it was introduced very necessary, in consequence of the absence of a Bill of exceptions in criminal cases, and the consequent impossibility, on an ordinary criminal trial, of setting right the miscarriage of a Judge in matter of law arising at the trial. Besides, by the 16th of Vict., c. 30, s. 10, the facility of obtaining a writ certiorari was much limited; so that the anomaly was so trifling that it afforded no argument whatever in favour of the proposition now before the House. The foundation of the measure was in itself a fallacy fatal to the success of the scheme. Its foundation was an alleged analogy between a civil action and a criminal prosecution. But his hon. and learned Friend himself was obliged to admit that no such analogy existed by withholding an appeal from the Crown. A civil case was a contention between two parties for victory; and the only interest the public had in it was to provide efficient tribunals for hearing it. How different was a criminal case? It was the duty of the Crown to watch over the safety of the subject, and in case of injury to any one to endeavour to dis- 438 cover the party who had inflicted it, and to bring him before a jury of his countrymen. But the Crown had no bias; it was as much the defender of the man in the dock as it was of the party for an injury against whom the prisoner was arraigned. Everything was allowed in favour of the prisoner. In trials of actions, juries were often locked up to deliberate because they had not come to decisions. But how did juries act in the case of prisoners placed in the dock? Why it was a "household word" in every one's mouth, that "a doubt must go in favour of the prisoner." The result was, that if any one juryman out of the twelve entertained a serious doubt of a prisoner's guilt the prisoner was acquitted. But let it only be known that the verdict of a jury carried no finality about it; that it might be set aside by an ingenious counsel, on the 6th of November, in Westminster Hall; that the law as well as the facts might thus be set aside; and juries would cease to bestow the care which they at present gave in order to arrive at a proper decision. Under all the circumstances, then, he could not hesitate to give his opposition to the Motion; but being at the same time fully sensible that an inconvenience existed in connection with the present state and practice of the criminal law, he would give his fullest consideration to any measure which he thought likely to provide the proper remedy for the evil.
MR. DIGBY SEYMOUR
said, he should have been better satisfied had he heard an intimation from the Solicitor General of his intention to lay before the House a remedy which, it was on all hands admitted, was required to meet an existing evil. He thought the omissions in the present Bill were better than some of its intentions. The Bill did not interfere with the Royal prerogative of mercy. That, he thought, was wise, and his own experience supplied a case in which it had been beneficially exerted. In 1846 he was called on to defend one of two persons charged with a murder in Yorkshire. Both were convicted; and they were sentenced to death by Mr. Justice Patteson. Shortly after the trial, the prisoner whom he defended expressed a wish to communicate with his attorney. The attorney went to the prisoner, and at once drew up, at the dictation of the prisoner, a statement by which he, fully and in detail, took upon himself the commission and guilt of the crime, and entirely, and without equivocation exculpated his fellow prisoner. This was brought to him 439 (Mr. Digby Seymour); he at once ran up with it to the Judge's lodging, obtained admission to the Judge, and handed him the document, and the result was that it was laid before the Home Secretary, and the prerogative of mercy was stretched out to save the life of a man condemned to death the day before. If that prerogative had been taken away a life would have been sacrificed. He also remembered a case of rape in the south of England, which excited great attention not many years ago, and in which the prerogative of mercy was again most properly extended, after the case had been sifted with the utmost care and attention. He hoped, then, that nothing would ever be done to deprive the Home Office of this prerogative. But ought nothing to be done in the way of improvement? He thought that the appeal in criminal cases would not be left dependent entirely on the consent of the Judge who tried the case; because in effect the judgment of the Judge was assailed by the appeal itself. The right of appeal should not be left on its present narrow basis, he would suggest the practice pursued in civil cases in tendering bills of exceptions to the Judge's ruling, or to the reception or rejection of evidence, about the application of which to criminal cases the Judges were divided in opinion, might, by the removal of the doubt, perhaps bring about the desired reform. He thought the whole question might very well be considered by referring the Bill to a Select Committee.
§ MR. LONGFIELD
said, he also thought the subject might be beneficially referred to a Select Committee. He could not assent to the argument that the power lodged in the Home Office, in conjunction with the extreme caution of juries, was so efficient, that rarely did an innocent person suffer punishment; for he himself remembered, several cases which were exceptions, where persons had been convicted who had afterwards been found to be innocent, and who, had the right existed of appealing to a second jury, would have been able at once to show their innocence. The revision of sentences by the Home Secretary was a very defective mode of dealing with them. The prerogative of mercy he did not desire to see altered, but that was very different from a revision of verdicts by the Home Secretary. The power was most frequently exercised on behalf of criminals who, from their position in society, or from being members of a powerful profession, excited an unusual degree of 440 interest in their cases. This had happened in the instances of Smethurst and Dr. Kirwan. He did not approve of giving the right of appeal in all cases, but in those only where the life of the criminal was forfeited by the verdict, or where he would be subject to penal servitude. Seeing that the feeling of the House was strong against the Bill, as it was strong in favour of the principle which it embodied, it might be desirable that the Bill should be withdrawn; but if the proposer pressed the measure to a division he (Mr. Longfield) would vote for the second reading.
§ MR. M'MAHON
, in reply, said, he was glad that the question had been subjected to so long a discussion. He thought he could show that the Court of Criminal Appeal, to which the hon. and learned Member for Marylebone had expressed a preference, would be an inefficient court for the purpose contemplated by the Bill, inasmuch as its members were ever varying, and it sat only twice in each term. Instead of the best it was the worst possible court to appeal to. The practice of Russia, of Greece, and of Belgium had been appealed to by those who opposed this measure; but, countries deriving their constitution and laws from ourselves, and making extensions on their principles, were the proper subjects of comparison for us; and in Wharton's American Criminal Law, quoted in Kent's Commentaries, to be found in the library of the House, it was distinctly laid down that appeals in criminal cases were allowable, and ten distinct classes of cases were enumerated in which the appeal would lie. The opinions of the Judges in these matters were not infallible guides; they were at all times opposed to any reform of the law; if their recommendations had been acted upon, our pleadings must be in Latin up to this day. The late Lord Ellenborough opposed the abolition, of the punishment of death for stealing to the amount of 5s. in a "shop" remarking that, this agreed to, the next step would be to cease hanging for stealing 5s. from a "dwelling-house," and then we should not know whether we were standing on our heads or our heels. The legal authorities cited by the Home Secretary were not Judges who had had much practice or experience in criminal courts. But, as the House had fully discussed the subject, nothing would be gained by answering in detail the objections that had been made to the measure; even on the part of those who opposed it, there seemed a general 441 agreement that some alteration was required; but inasmuch as the details of the Bill were not approved, he would not press his Motion. At the same time, however, he was certain that no better or more carefully drawn Bill than this would ever be prepared by any one or by all of the hon. and learned Gentlemen who had objected to this; and that if an appeal were ever to be allowed, the mode of procedure must be framed on the model of this measure.
§ Question, "That the word 'now' stand part of the Question," put, and negatived.
§ Words added.
§ Main Question, as amended, put, and agreed to.
§ Bill put of for six months.