The Inequitable Abolition of Grand Juries

Scales-of-justice-2
From Bouviers:

GRAND JURY, practice. A body of men, consisting of not less than twelve nor more than twenty-four, respectively returned by the sheriff of every county to every session of the peace, oyer and terminer and general gaol delivery, to whom indictments are preferred. 4 Bl. Com. 302; 1 Chit. C. L. 310, 1.

2. There is just reason to believe that this institution existed among the Saxons, Crabb’s C. L. 35. By the constitutions of Clarendon, enacted 10 H. II. A. D. 1164, it is provided, that “if such men were suspected, whom none wished or dared to accuse, the sheriff, being thereto required by the bishop, should swear twelve men of the neighborhood, or village, to declare the truth” respecting such supposed crime; the jurors being summoned as witnesses or accusers, rather than judges. If this institution did not exist before, it seems to be pretty certain that this statute established grand juries, or recognized them, if they existed before.

3. A view of the important duties of grand juries will be taken, by considering, 1. The organization of the grand jury. 2. The extent of its jurisdiction. 3. The mode of doing business. 4. The evidence to be received. 5. Their duty to make presentments. 6. The secrecy to be observed by the grand jury.

4. – 1. Of the organization of the grand jury. The law requires that twenty-four citizens shall be summoned to attend on the grand jury; but in practice, not more than twenty-three are sworn, because of the inconvenience which else might arise, of having twelve, who are sufficient to find a true bill, opposed to twelve others who might be against it. 6 Adolph. & Ell. 236; S. C. 33 e. C. L. R. 66; 2 Caines, R. 98. Upon being called, all who present themselves are sworn, as it scarcely ever happens that all who are summoned are in attendance. The grand jury cannot consist of less than twelve, and from fifteen to twenty are usually sworn. 2 Hale, P. C. 161; 7 Sm. & Marsh. 58. Being called into the jurybox, they are usually permitted to select a foreman whom the court appoints, but the court may exercise the right to nominate one for them. The foreman then takes the following oath or affirmation, namely: “You A B, as foreman of this inquest for the body of the ______ of _________, do swear, (or affirm) that you will diligently inquire, and true presentments make, of all such articles, matters and things as shall be given you in charge, or otherwise come to your knowledge touching the present service; the commonwealth’s counsel, your fellows and your own, you shall keep secret; you shall present no one for envy, hatred or malice; nor shall you leave any one unpresented for fear, favor, affection, hope of reward or gain; but shall present all things truly, as they come to your knowledge, according to the best of your understanding, (so help you God.”) It will be perceived that this oath contains the substance of the duties of the grand jury. The foreman having been sworn or affirmed, the other grand jurors are sworn or affirmed according to this formula: “You ‘and each of you do swear (or affirm) that the same oath (or affirmation) which your foreman has taken on his part, you and every one of you shall well and truly observe on your part.” Being so sworn or affirmed, and having received the charge of the court, the grand jury are organized, and may proceed to the room provided for them to transact the business which may be laid before them. 2 Burr. 1088; Bac. Ab. Juries, A. The grand jury constitute a regular body until discharged by the court, or by operation of law, as where they cannot continue by virtue of an act of assembly beyond a certain day. But although they have been formally discharged by the court, if they have not separated, they may be called back, and fresh bills submitted to them; 9 C. & P. 43; S. C. 38 E. C. L. R. 2 8.

5. – 2. The extent of the grand jury’s jurisdiction. Their jurisdiction is coextensive with that of the court for which they inquire; both as to the offences triable there, and the territory over which such court has jurisdiction.

6. – 3. The mode of doing business. The foreman acts as president, and the jury usually appoint one of their number to perform the duties of secretary. No records are to be kept of the acts of the grand jury, except for their own use, because, as will be seen hereafter, their proceedings are to be secret. Being thus prepared to enter upon their duties, the grand jury are supplied with bills of indictment by the attorney-general or other officer, representing the state or commonwealth against offenders. On these bills are endorsed the names of the witnesses by whose testimony they are supported. The witnesses are in attendance in another room, and must be called when wanted. Before they are examined as to their knowledge of the matters mentioned in the indictment, care must be taken that they have been sworn or affirmed. For the sake of convenience, they are generally sworn or affirmed in open court before they are sent to be examined, and when so qualified, a mark to that effect is made opposite their names.

7. In order to save time, the best practice is to find a true bill, as soon as the jury are satisfied that the defendant ought to be put upon his trial. It is a waste of time to examine any other witness after they have arrived at that conclusion. Twelve at least must agree, in order to find a true bill; but it is not required that they should be unanimous. Unless that number consent, the bill must be ignored. When a defendant is to be put upon his trial, the foreman must write on the back of the indictment “a true bill,” sign his name as foreman, and date the time of finding. On the. contrary, where there is not sufficient evidence to authorize the finding of the bill, the jury return that they are ignorant whether the person accused committed the offence charged in the bill, which is expressed by the foreman endorsing on the bill “ignoramus,” signing his name as before, and dating the time.

8. – 4. Of the evidence to be received. In order to, ascertain the facts which the jury have not themselves witnessed, they must depend upon the statement of those who know them, and who will testify to them. When the witness, from his position and ability, has been in a condition to know the facts about which he testifies, he is deserving of implicit confidence; if, with such knowledge, he has no motive for telling a false or exaggerated story, has intelligence enough to tell what he knows, and give a probable account of the transaction. If, on the other hand, from his position he could not know the facts, or if knowing them, he distorts them, he is undeserving of credit. The jury are the able judges of the credit and confidence to which a witness is entitled.

9. Should any member of the jury be acquainted with any fact on which the grand jury are to act, he must, before he testifies, be sworn or affirmed, as any other witness, for the law requires this sanction in all cases.

10. As the jury are not competent to try the accused, but merely to investigate the case so far as to ascertain whether he ought to be put on his trial, they cannot hear evidence in his favor; theirs is a mere preliminary inquiry; it is when he comes to be tried in court that he may defend himself by examining witnesses in his favor, and showing the facts of the case.

11. – 5. Of presentments. The jury are required to make true presentments of all such matters which may be given to them in charge, or which have otherwise come to their knowledge. A presentment, properly speaking, is the notice taken by the grand jury of any offence from their own knowledge, as of a nuisance, a libel, or the like. In these cases, the authors of the offence should be named, so that they may be indicted,

12. – 6. Of the secrecy to be observed by the grand jury. The oath which they have taken obliges them to keep secret the commonwealth’s counsel, their fellows and their own. Although contrary to the general spirit of our institutions, which do not shun daylight, this secrecy is required by law for wise purposes. It extends to the votes given in any case, to the evidence delivered by witnesses, and the communications of the jurors to each other; the disclosure of these facts, unless under the sanction of law, would render the imprudent juror who should make them public, liable to punishment. Giving intelligence to a defendant that a bill has been found against him, to enable him to escape, is so obviously wrong, that no one can for a moment doubt its being criminal. The grand juror who should be guilty of this offence might, upon conviction, be fined and imprisoned. The duration of the secrecy appears not to be definitely settled, but it seems this injunction is to remain as long as the particular circumstances of each case require. In a case, for example, where a witness swears to a fact in open court, on the trial, directly in opposition to what he swore before the grand jury, there can be no doubt the injunction of secrecy, as far as regards this evidence, would be at an end, and the grand juror might be sworn to testify what this witness swore to in the grand jury’s room, in order that the witness might be prosecuted for perjury. 2 Russ. Cr.. 616; 4 Greenl. Rep. 439; but see contra, 2 Halst. R. 347; 1 Car. & K. 519. Vide, generally, 1 Chit. Cr. Law, 162; 1 Russ. Cr. 291; 2 Russ. Cr. 616 2 Stark. Ev. 232, n. 1; 1 Hawk. 65, 500 2 Hawk. ch. 25; .3 Story, Const. §1778 2 Swift’s Dig. 370; 4 Bl. Com. 402; Archb. Cr. Pl. 63; 7 Sm. Laws Penna. 685.

Original Post

From Hansard’s:

GRAND JURIES.
HC Deb 28 November 1837 vol 39 cc358-65 358

Mr. Pryme rose to move for leave to bring in a Bill to abolish grand juries in England. He was aware that the subject, though one of great and 360 general importance, was not a very entertaining one. At times, however, it became necessary to inquire whether certain institutions had not outlived their usefulness, and did not any longer answer the end for which they were instituted. At one time the grand jury system was justly considered as one of the great bulwarks of English liberty; but now grand juries were no more than an appeal from the committing magistrate.

According to Lord Somers, who was a high authority upon the point, grand juries were instituted to search out crime—to find out offences—and not, as now, merely to put cases in a train for trial. In his opinion, the grand jury system was, in many cases, an obstruction to justice. In Scotland there were no grand juries, but there was a public prosecutor; and when a judgment was given against any one it was submitted to the Lord Advocate or the Sheriff. He was not about to propose the adoption of any such principle in this country, although it would be competent for him to do so if he thought it would do good. The hon. Member proceeded to quote a variety of evidence as to the inefficiency of grand juries.

Mr. Harvey Coombe, the magistrate of the Lambeth-street police-office, had stated before a Committee of the House of Commons that the grand juries, as at present constituted, were an impediment rather than an advancement to justice. The Recorder of Worcester had said before the same Committee, “After a man has been imprisoned for several weeks, it ought not to be left to a secret tribunal to determine whether there was a sufficient case against him.” He wanted no intervening tribunal. He conceived that in the present state of the magistracy in England and Wales, formed as it was by enlightened and intelligent gentlemen, such a tribunal was not necessary. If it was contended that it would be a saving of time, he did not admit the force of such an argument; if there was a gain of time in one respect there would be a still greater loss in another.

The time of the judge would, no doubt, be saved, but then they would occupy the time of from three to five thousand gentlemen during the year, and in this point of view more of the time of the country would be consumed. But he would never admit that time was a consideration in such cases. They ought alone to consider how justice could be most speedily and impartially administered. He would not occupy the time of the House further than to express a hope that, if his motion had no other effect, it would call attention to the subject, and that there would be further opportunities of discussing it. The hon. Member concluded by moving for leave to bring in a Bill to abolish grand juries in England and Wales.

The Attorney-General rose for the purpose of opposing the motion. He thought that there was a general impression in the House the other night that the House would not in future give leave to bring in a Bill unless there was a reasonable prospect that it could be carried into a law during the Session. His hon. and learned Friend, the Member for Cambridge, had asked for leave to bring in a Bill to abolish grand juries in England and Wales, Why, if grand juries were so faulty an institution, he had not proposed to extend his Bill to grand juries in Ireland, saving always their fiscal jurisdiction in that country, he had not thought proper to explain. He did not wish it to be supposed, because he opposed this motion, that he considered the institution of grand juries one of the best possible institutions for criminal jurisprudence; on the contrary, he thought that an officer like the public prosecutor in Scotland, who was appointed by the Government, liable to the same responsibility for his actions to which all other Government officers were liable, would be a far better institution.

He was convinced that you must either have grand juries or a public prosecutor; and if his hon. and learned Friend had proposed, upon abolishing grand juries, to appoint a public prosecutor, he might have respectfully entertained that proposition, although he warned the House that it would be a proposition which could not be carried into effect in this country without many difficulties. But his hon. and learned Friend had not proposed any substitute for the institution which he desired to abolish; and as there was no chance of carrying such a Bill as he had proposed through the House, he must, with all deference to his hon. and learned Friend, withhold his assent from the motion.

Mr. Warburton could not assent to the proposition of the hon. and learned Attorney-General, that the House had on a former evening laid down a rule, that if there was no prospect of carrying a Bill 362 into law in the course of the Session, leave was not to be given to bring it in and discuss it. To such a rule he should never for one moment yield his assent. If such a rule had been established in by-gone times, they must have kicked out in their very first stages the Imprisonment for Debt Bill, the Registry Bill, the Catholic Emancipation Bill—ay, and as an hon. Friend near him suggested, the Reform Bill itself.

He felt inclined to support the proposition of his hon. and learned Friend, the Member for Cambridge, as a proposition wise and salutary in itself, and he did hope that his hon. and learned Friend would be permitted to introduce it with a view to have it submitted to discussion. If the institution of an office like that of the public prosecutor in Scotland was so advisable as the hon. and learned Attorney-General represented it to be, let him consent to the introduction of this Bill, and then, when it was in Committee let him propose a clause appointing such an officer. If his hon. and learned Friend divided the House on this motion, he should certainly have the benefit of his vote.

Lord John Russell complained, that his hon. Friend, the Member for Bridport, had not represented correctly the proposition of his hon. and learned Friend, the Attorney-General. His hon. and learned Friend had stated the impression of the House to be this:—that if there was no reasonable prospect that the principle of a Bill could be carried into law, it was not advisable to give leave to introduce it. Now. he was not prepared to abolish grand juries altogether; and such being the case, he should oppose the motion of his hon. and learned Friend for leave to bring in his Bill.

Mr. Aglionby meant to support the proposition for leave to bring in this Bill, but would not pledge himself to support it hereafter. He also complained of the manner in which his hon. and learned. Friend had endeavoured to stifle all discussion upon it.

Mr. Maule said, that the question was, whether this Bill was a fit subject for the consideration of the House. He was of opinion that it was, and that it did not deserve to be classed with those frivolous and trifling Bills which had wasted so much of the time of the House in former Sessions. He should support the motion of his hon. and learned Friend, the Member for Cambridge.

Sir R. Peel said, that it was not possible to maintain the proposition of the hon. and learned Attorney-General, that the introduction of a Bill was to be resisted unless there was a reasonable chance of carrying it to a successful issue in that Session of Parliament. The mode of dealing with the introduction of new Bills must depend upon the nature and merits of each distinct Bill. There were many Bills which, although not perhaps at all likely to pass into a law, might, notwithstanding, be very fit subjects to be discussed, while others ought to be rejected without any discussion. With regard to the present measure, he must say that there were, in his opinion, very satisfactory grounds for refusing to entertain it.

No practical reason had been given by the hon. and learned Gentleman for striking out of our system of criminal jurisprudence this important branch, which gave, as he believed, perfect satisfaction to the people. If the House were to consent to abolish grand juries on the plausible philosophical reasons adduced by the hon. and learned Gentleman, what was to prevent him from recommending it to abolish petty juries also, for the same specious but unsatisfactory reasons? He could tell them that it was very absurd to have a tribunal of twelve persons to try every species of offence. He could tell them that it was still more absurd to require unanimity in their verdict, and to lock them up in a room till they came, in spite of all differences, to that unanimity. These might appear to some to be good plausible philosophical arguments; and when he had carried his Bill for the abolition of petty juries, and the hon. and learned Member for Cambridge had carried his Bill for the abolition of grand juries, the only part of the community who would receive their legislation with satisfaction, would be that part of it which was in the habit of preying on the property of its neighbours.

He thought the House had a right to require of the hon. and learned Gentleman to propose some substitute before they proceeded at all to discuss such a proposition as this. It was bad policy in a branch of the Legislature to condemn any portion of the jurisprudence of the country on which the lives and property of the community depended for protection, merely because a philosophic speech had been delivered to recommend such condemnation. It would be much wiser, he thought, to permit the present system to remain as it was than to deprecate that system, without any substitute being proposed in its stead. He would, therefore, refuse his assent to the introduction of the present Bill.

A public prosecutor had been suggested by the hon. and learned Gentleman opposite (the Attorney-General), such as they had in Scotland; but would not the objection hold as strongly, if not more strongly, against one individual putting a man upon his trial, after hearing evidence in private, than against a grand jury? It was far from his wish to suggest to the hon. and learned Gentleman who proposed this Bill, that he ought to publish his philosophical arguments in favour of it in some magazine, but while he would offer no such advice, still, at the same time, if the hon. and learned Gentleman should act upon the advice already given to him in this respect, and would oblige him by telling him in what magazine the arguments appeared, he would promise the hon. and learned Gentleman that he would read them, and give them the most impartial consideration.

At present, seeing, as he did, that no substitute was proposed for that which it was intended to abolish—seeing that grand jurors were a powerful check upon the committal of the King’s subjects for trial in a public court by magistrates without sufficient grounds—and seeing that the country generally was satisfied with the present system, he believed that to abolish that system abruptly, without viewing and considering it in relation to all the other branches of the jurisprudence of the country, would be attended with bad results and much dissatisfaction. For all these reasons he was prepared to give a decided negative to the introduction of the present Bill to abolish grand juries.

Mr. Wakley said, that every man in England who had paid the slightest attention to the subject, knew that the grand jury was a species of Star Chamber, which served the purpose of screening the magistracy. The remark appeared to be felt, but he would repeat his belief that its only use was to screen delinquent magistrates. There were hundreds of commitments under the game-laws, which would throw disgrace on the magistracy, if the parties were brought to trial; but they were not tried, because the grand jury conveniently interposed between the commitment and the petty jury. If the House rejected the motion and disposed of the question without consideration, they would show the people of England that they were prepared to deny them justice on a most important branch of jurisprudence.

Viscount Sandon remarked, that commitments under the game-laws did not come before quarter-sessions at all. That court only took cognizance of aggravated offences, such as assaults. The hon. Member ought not to make a charge against the magistracy of England, without any sufficient foundation.

Mr. Wakley said, that some time since, in the north of England, a contest took place between a gamekeeper and a person supposed to be a poacher, in which the poacher was killed. A coroner’s inquest was held on the body, and the jury returned a verdict of wilful murder against the gamekeeper. The grand jury, when the matter came before them, ignored the bill. He thought this fact afforded sufficient grounds for the assertion he had made.

Mr. Pryme replied.

The House divided:—Ayes 25; Noes 196: Majority 171.

Original Post

CLAUSE 18.—(Abolition of Grand Juries at Quarter Sessions.)
HC Deb 16 November 1925 vol 188 cc138-53 138

§ Sir H. SLESSER

I beg to move to leave out the Clause.

The Amendment I am now moving touches one of the most important proposals of this Bill, namely, the proposal to abolish grand juries at Quarter Sessions. I had hoped that even at this late hour I might appeal to sufficient conservative feeling on the other side of the House to preserve this ancient institution, but, as I have said before in discussing this matter, I despair of finding any Conservatives in the party who sit opposite. The grand jury, as I should like to make quite clear to my hon. Friends on this side of the House, gives to every prisoner another chance. Some hon. Members may say, “The grand jury is constituted entirely of the more prosperous people in the county.” That may be, conceivably, an argument for democratising the grand jury, but it is no argument for abolishing grand juries. Cases were cited to us in Committee, and they are known to this House, where real injustice has been avoided by the opportunity in grand jury of throwing out a bill when a man ought not to have been committed for trial at all—a power to correct a mistake made before the Justices. A man’s chance of avoiding standing his trial when he has been wrongfully committed will be entirely destroyed if the machinery of the grand jury is removed. It may be that to-day there are not very many of these cases, although the hon. Member for Ealing (Sir H. Nield) cited on the Committee stage a large number of cases, far more than most people realise, where grand juries have in fact thrown out bills.

139 What is the argument for the abolition of the grand jury? The grand jury is one of the most ancient, and certainly the most integral parts, of our system of criminal justice, which has always assumed the grand jury as the only channel through which the law brought a prisoner to trial before a petty jury; and I submit that it is a very serious thing lightly to alter this old machinery of criminal justice. It is said that people who are now summoned on grand juries would be saved a certain amount of trouble, and possibly expense, if they were not so summoned. That is a very fallacious argument. One of the strongest arguments in favour of the retention of the grand jury is that it does attempt to make people in various counties and boroughs interested in the administration of justice. It is a great mistake to think that justice should be a matter entirely concerning professional people. The whole idea of the grand jury is that people in the counties and in the boroughs should take a personal interest in the administration of justice in their districts. As I see it, the tendency is for the administration of criminal justice to become more and more professionalised, more and more a matter of bureaucracy and expert regulation. Against that the grand jury is and always has been a very good corrective. It may well be that in the future the times may be more troublous than they are now. There is no doubt, particularly in times of very keen political feeling, that grand juries have done a great service in the past to cure injustice, notably at the be ginning of the last century. There was case after case where men were saved the need of standing their trial before a petty jury through the action of the grand jury, particularly in the City of London, in refusing to return true bills.

Why should we be asked to consent to the abolition of the grand jury? It an-not be said that the need for the grand jury has passed away. I said that can-not be said, but I know it will be said, and said in a few minutes by the Attorney-General. Are people not as much entitled to a proper consideration of their case now as they were one hundred years ago? What are the circumstances which have arisen during the last hundred years which have made grand juries less neces- 140 sary than they were a century ago? This proposal arises simply from the radical itch for change which possesses the right hon. Gentleman and his colleagues. He thinks he must do something to alter criminal justice administration in this country. He says, “Let us destroy something; let us destroy the grand jury first.” We have been told that when these “Bolsheviks,” if I am not using a defamatory term, have succeeded in destroying the grand jury at Quarter Sessions, they will go on very shortly to destroy the grand jury at Assizes. All I am asking is that matters should remain as at present so far as the grand jury is concerned. It is natural and proper to summon persons in the county to take an active part in the administration of justice, and it gives a prisoner the chance that he may avoid having to stand his trial at Quarter Sessions. Side by side with the proposal to abolish grand juries is the proposal to increase the powers of Quarter Sessions, so that at the very time when a prisoner’s chance is being reduced, the number of offences for which he may be tried at Quarter Sessions is being increased. Therefore, I make this appeal to hon. Members on this side of the House, who may object to the grand jury because of the first word, the word “grand.” Let us certainly work to make the grand jury more democratic, but because at present the grand jury is (improperly as I think) limited to a certain class of the community, let us not, therefore, abolish what is a protection for a prisoner. I think the powers of the law in the administration of justice are quite strong enough at the present time. I hope this party, at any rate, will do nothing to reduce the safeguards which exist at present for the maintenance of the liberties and the chances of acquittal of a prisoner. The arguments in favour of the grand jury are substantial, are historic and based on experience. The arguments that the House will hear for the abolition of the grand jury are based on the mere material expediency of the moment, on the plea that a little less money will be spent in summoning grand juries, or that a few gentlemen who ought to be proud to serve the State on a grand jury will have a little more time to themselves.

The wisdom of the past has shown that the Grand Jury system works well as part of the English judiciary system. This is 141 a very great responsibility, because the Government are taking upon themselves to abolish an institution which I believe has existed nearly 1,000 years. I appeal to hon. Members opposite to retain this opportunity of correcting possible mistakes in the administration of justice, and I think it ought to appeal to them that the Chairman of Quarter Sessions should have the right to charge a Grand Jury. The arguments used for the abolition of the Grand Jury are mere arguments of expediency in order that people may save a little money here and there. Finally, I wish to say that the Grand Jury in the past has been the means of bringing people together in the counties, and I do not believe that the great majority of the people in the counties who serve upon Grand Juries wish to see the Grand Jury system abolished. I do not believe there is the slightest demand for the abolition of the Grand Jury in the country. This proposal is purely Departmental in its origin, and if you canvass the persons responsible I feel sure they would say in nearly every county they would prefer Quarter Sessions to continue as in the past. There is no case for this ruthless abolition of the system, and for that reason I move my Amendment.

§ Colonel WEDGWOOD

Speaking, unfortunately, as a potential criminal, because one never knows in these days when one’s opinion will be held to be unreasonable, I protest against the removal of any safeguard which may possibly keep me out of prison. I agree with the ex-Solicitor General that it is rather for the Government to make out an overwhelming case for the abolition of the Grand Jury than for us to defend the system. It must be within the memory of many here present that in the past Grand Juries have been the main defence of British liberty. In the prosecutions which took place at the close of the eighteenth century and the beginning of the nineteenth century the Grand Juries alone stood between the action of the Tory Government of the day, which was trying to indict people like ourselves hut much more moderate as being guilty of constructive treason. Even the Grand Jury in those days was so moved by Mr. Erskine’s passionate appeals that they threw out the Government prosecutions and saved the freedom of the subject and freedom of opinion in this country. For 142 that reason alone I would urge the Government to accept this Amendment.

I have also a personal reason for this course. The more I listen to the ex-Solicitor-General, the more I am convinced that we have in him the incarnation of Mr. G. K. Chesterton. If you are to choose between bureaucracy and even a Grand Jury I prefer the Grand Jury. Hero we are taking the first steps towards a change in the right direction. It is true that the Grand Jury, selected chiefly from the rich, invariably has class-conscious bias, but obviously the way to put that right is to improve the Grand Jury and not abolish it and hand over the jurisdiction solely to the judiciary alone. For these reasons, because I believe that my right hon. and learned Friend is standing up for the old British liberties against bureaucracy, I believe if we resist this change we shall be able to convert the Grand Jury into a really democratic body representing the bulk of the community, and I hope we shall go into the Division Lobby against this Clauce with a clear conscience and in the hope of converting bureaucratic Gentlemen opposite.

§ Mr. BANKS

I wish the hon. and gallant Gentleman who has just sat down would enlighten us in regard to what he has said about the proceedings of Grand Juries in the time to which he has alluded. If those juries were moved by the passionate appeals of Mr. Erskine, as he has stated, one would infer that at that time it was the custom for counsel to address Grand Jury, but that is an historical inaccuracy. I hope hon. Members will think twice before accepting the proposal which has been put forward.

§ Colonel WEDGWOOD

The hon. and learned Member will find a full account of what I have said in regard to Mr. Erskine if he consults Campbell’s “Lives of the Lord Chancellors.”

§ The ATTORNEY-GENERAL

I think my hon. and gallant Friend is a little mistaken in attributing any such statements to Mr. Erskine, and if he studies the matter a little more closely he will find that Mr. Erskine made eloquent speeches in favour of acquittal, and the people who listened to him were the people who had to try the prisoner and they were petty jurors. The Grand Juries are never allowed now to listen to counsel, and they 143 never were. After pointing out that historical inaccuracy I will deal with the Amendment. The hon. Member who moved the Amendment denounced in fiery language the abolition of the Grand Juries, and he described them as the palladium of the liberty of speech. It may surprise hon. Members who were not present during the Committee stage, where this question was discussed at great length, to know that this Clause does not abolish Grand Juries, but it only abolishes Grand Jury at Quarter Sessions, leaving quite untouched the Grand Juries at Assizes.

§ Sir H. SLESSER

I said the proposal only applied to Quarter Sessions, and I stated clearly that if it was applied to Quarter Sessions it would subsequently be applied to other Sessions.

§ The ATTORNEY-GENERAL

Does the hon. and learned Gentleman say that, if it turns out later on that this does work well, we shall not be allowed to extend it? The present proposal is not to extend it, but only to see if it works well. The hon. and learned Gentleman did not tell the House, but perhaps some hon. Members may remember, that this is not a new experiment we are proposing, but an experiment which was tried for some years during the War, when Grand Juries were mainly occupied on other forms of public service and which worked admirably without any difficulties or complaints at all. I rather agree that the burden of proof rests upon the Government, because although the late Solicitor-General is moving to leave out the Clause, the fact is that the Government are asking the House, not to abolish, but to limit the number of cases in which Grand Juries are used. I would remind the House that the first reason why we wish to do this is that, contrary to what the hon. and learned Gentleman seems to think, the Grand Juries themselves do very earnestly desire this change. We have had presentment after presentment from Grand Juries all over the country begging us to introduce it, and after all they really know best what they desire. They have sent out a whole sheaf of presentments to the Home Office—I have not got the exact figure, but I think my right hon. Friend has between 45 and 50 of them from various localities — begging the Government to abolish Grand Juries at Quarter Sessions because 144 they regard them as a wholly unnecessary expense and waste of time; and that is the great case for their abolition. They are a severe tax upon the Grand Juries themselves, who are brought repeatedly from all over the county to attend in order to listen to directions from the chairmen of Quarter Sessions upon various points of law, and then, in almost every case, after seeing one or two witnesses to return a true Bill, and allow a case to go forward which has already been committed by the magistrate who has investigated the facts.

Further, not only are Grand Juries themselves exposed to considerable expense and waste of time but witnesses in every case which is coming before Quarter Sessions are exposed to considerable expense and waste of time, since in every case that has to come before the Grand Jury—and it is quite uncertain how many witnesses a Grand Jury will require to hear before they find the true Bill— so that every witness has to be brought there on the first day of the Sessions in order to be produced before the Grand Jury, if required, in order that the Grand Jury may find a true Bill. That is not only a great expense which the county has to defray, but also a very considerable waste of time to the witnesses, who, after all, in some eases have no concern in the case, but are only there in the discharge of their public duty. One ought to remember the trouble and inconveniences to which witnesses at criminal trials are very often exposed by the mere accident that they happen to be sometimes very remotely connected with a case in having to prove some comparatively trivial fact which has to be established by formal evidence. It does seem to me that if the witnesses are to be saved all this expense and trouble, it is a material fact.

I would like to tell the House what I explained to the Committee, that in every case in which a Grand Jury can perform any useful function, for example, where somebody, notwithstanding that the magistrate says there is no case, desires to prefer an indictment, and is bound over to do so under the Vexatious Indictment Act. We preserve the existence of the Grand Jury, and all that happens is that the particular prosecutor is bound over to appear at the next Assizes instead of at the next Quarter Sessions. There is no 145 hardship to the accused in that case, because ex hypothesi he has been charged by the magistrate, and therefore goes about his affairs quite free from bail or costs. These are the grounds why we ask the House to favour this change. It is a matter which has been tried and has worked successfully, and which will save a considerable amount of public money and a considerable waste of the time of the people who cannot afford it. It is very often an inconvenience and expense to witnesses, and the change inflicts no injustice or hardship on anybody in the world. In the old cases to which my hon. and learned Friend refers, there was presented direct to the Grand Jury by the Attorney-General of the day a charge of treason, and as in many of these cases, as he well remembers but as his right hon. and gallant colleague has forgotten, there was a trial by the petty jury, and Mr. Erskine persuaded the petty jury to find a verdict of “Not guilty.” In any case of treason, that would still happen. In practice to-day, that is not the way an indictment is normally proceeded with. The charge is first made before a justice or a stipendiary magistrate, and the magistrate in every case carefully examines the facts and satisfies himself that there is a prima facie case before he commits the accused. Unless he is satisfied that there is such a case an accused person goes free and there is no question of grand or petty jury in it. If the magistrate is satisfied that there is a case for investigation by a petty jury, then it does not seem to me any great hardship that the accused should have the case investigated by the jury by whom the committing magistrate thinks it ought to be tried.

The only other body of persons who object to the abolition is, I think, a certain number of Recorders, who act sometimes as Chairmen at Quarter Sessions and who have the privilege at present of explaining to grand juries what their views on law are. Unfortunately, these opportunities will be abolished if this provision is agreed to. I cannot help thinking that that deprivation is one that they ought to undergo in the public interest.

So far as the Grand Juries themselves are concerned, they will still have the privilege of having an authoritative explanation of the law from the judge of 146 assize as to any necessary matters connected with the administration of justice. There may be a reason why it should be desirable that magistrates should have the administration of law explained to them, and that right is preserved. Conservatism does not consist, as the hon. and learned Gentleman seems to think, in preserving what is useless, but only in preserving and improving what is really good.

§ Mr. RAWLINSON

As one of the class to which the Attorney-General has referred with so much sarcasm and humour —the despised class of Recorders who sometimes have to administer criminal justice—I appeal to his better nature, and ask him to let us have a chance of a free vote on this point. I assure him that this is not a question of Conservatism or Liberalism. The split upon this question divides parties in strangely diverse lines. It is not a question of politics at all. Is it a time to take away what, undoubtedly, is a safeguard at present, when this Bill is going to increase very largely the powers of Quarter Sessions? You have in many cases a new set of magistrates unversed in criminal law, and they are, possibly, committing for trial to Quarter Sessions with a very much larger jurisdiction than they have ever had before. Is it wise at such a moment to take away this extra bulwark in favour of the prisoner? I am not going into the points raised by the right hon. and gallant Member for Newcastle-under-Lyme (Colonel Wedgwood), but there are still cases in which this safeguard is useful. Anyone who has been concerned with criminal law will know, for instance, that in the case of a charge of indecent assault against a man whose defence is consent, the Grand Jury may, on questioning the witnesses for the prosecution, throw out the Bill; and in circumstances of that kind a Grand Jury may still sometimes be of use at the present time, in preventing the trial of cases which are better not tried in court.

Apart from that, let me deal with the two points put by the Attorney-General— the expense to witnesses and the expense to the State, that the witnesses will have to attend the grand jury on the first day of the Sessions, and that, therefore, a great amount of expense will be saved if that is abolished. Not one single penny piece, however, will be saved, because 147 every witness will have to attend on the first day whether this Bill be passed or not. They must be there on the first day, when pleas of guilty are taken. During the War there was never any remission as regards witnesses attending on the first day of the Sessions, and they will have to be there in the future just as they are now. Therefore, the question of expense to the State has nothing to do with the matter. Not one penny of expense will be saved to the State, nor any inconvenience to witnesses, by the abolition of the grand jury.

That there is a certain amount of inconvenience in serving on the Grand Jury there is not the slightest doubt, but, surely, it is important now, when the magistracy is being extended, when great powers are being given by this very Bill, and when men and women who have never been in a Criminal Court in their lives are being put on the magisterial bench. Is this a time to take away what is really a very instructive opportunity to people connected with the criminal law? The people who are summoned on Grand Juries at Quarter Sessions are not the people who serve on the Grand Jury at Assizes. The Grand Jury at Assizes consists of magistrates of the county, who are already interested in criminal law, but the people who come to the Grand Jury at Quarter Session, at any rate in the borough from which I come—the taunt as to their being rich depends very much upon what is regarded as riches, but I do not know that anyone in this House would look upon them as rich —come, it may be at some inconvenience, and, it may be, are lectured by the Recorder or by the chairman, about whose title to confidence some doubts have been expressed. It does tend to bring them to try and take an interest in that most important branch of legal work, the administration of the criminal law, and the more fact that they do come is an educative influence upon the grand jury in that case. Those are the people to whom we have to look for the magistrates in any borough. I do hope the Government will leave this matter to an open vote tonight. I agree, and I am grateful for it, that the grand jury is to be permitted to remain at Assizes, but is this proposal really quite so wise as it looks? Does the prisoner really require more protec- 148 tion at Assizes, when he is tried by a Judge of the High Court, than at Quarter Sessions, when he is tried not by the chairman of Quarter Sessions, but by one of the class to which I have the honour to belong, and at which my right hon. and learned Friend laughed and gibed— the humble Recorder who likes to hear his own voice. I must apologise for inflicting mine on the House on this occasion.

§ Sir H. NIELD

I listened quietly to the dulcet tones of the Attorney-General, and took his rebuke with fitting humility. It is long since he went to Quarter Sessions, he having, meteor-like, shot ahead and left the rest of us in the wilderness; but let me tell him and the House that not the least of the duties which these officers have to perform is to deal with the chief constable’s report on crime and other matters concerning the good government of the country. It is no pleasure to them to have to wade through depositions and address the jury upon them, and I can assure the House that I have never done such a thing, but that five minutes will see the jury considering their Bill. I cannot see the distinction between the two classes of cases, except that the one is, of course, much more serious than the other, and involves far heavier punishments, as a rule, though Quarter Sessions have power to pass, and are often justified in passing, very stringent sentences. It seems to me, however, that the policy of the Government is that, if a thing has been tried during the War, under exceptional war conditions, when people have universally endeavoured to make things run smoothly because of the War there is a necessity to prolong and legalise it in time of peace. We heard a rumble of it this afternoon, which will probably recur to-morrow, in connection with the first Order on the Paper, the Expiring Laws Bill, which attempts to make permanent legislation which was only submitted to by the good will of the people during the War. To say that this abolition of Grand Juries at Quarter Sessions has so justified itself in practice that it ought to be continued is, I think, with great respect to the Attorney-General, going a little too far. There never was a question that divided people more than this question of Grand Juries. It divided the High Court, we are told. It has not divided the chairmen of 149 Quarter Sessions. I ventured, as will be seen from the OFFICIAL REPORT of the Standing Committee for the 16th June last, to read an extract to the Committee.

I will not inflict it on the House because it consists of over a column of close print, but in column 171 of the OFFICIAL REPORT hon. Members will find set out the objections of Chairmen of Quarter Sessions to any alteration with regard to the Grand Jury. There is a society of Chairmen of Quarter Sessions which comprises chairmen and deputy-chairmen all over the country. In 1909 their opinion was sought and the resolution was passed that the society, was of opinion that it would be a great mistake to abolish Grand Juries at Quarter Sessions. That was after a circular letter had been sent round the whole country to ascertain the views of the justices. In 1914, just before the War, another plebiscite was taken, and in the opinion of the society it was not desirable that Grand Juries should be abolished. In 1921, when the danger was imminent, they not only expressed the same opinion, but they gave a series of reasons for having come to that conclusion. I think a man’s character is just as precious to him whether he is before a Court of Quarter Sessions or whether he is committed to Assizes. There are many members of petty sessional benches who are not skilled in the hearings and committals of cases and over and over again cases have been committed which ought not to have been. I wonder whether hon. Members opposite appreciate that a man who under the present system would be released by a Grand Jury throwing out a bill, if sent before a petty jury, very often, by prejudice or by the nature of the offence, runs the risk of getting convicted when he should not be. I called attention—it is reported in the OFFICIAL REPORT—to two cases which had been dealt with by the Grand Jury in Middlesex only four days before I spoke. I spoke on the Wednesday, and on the preceding Saturday the jury threw out the bills. They discriminated because in the one case they cut the bill only, and in the other they cut it against a receiver who was charged jointly. You had an astonishing illustration of the injustice that might be done in the case of Major Shepherd which my right hon. Friend investigated. Major Shepherd’s bill was thrown out at the 150 London Session. But for that he would have been sent before a petty jury, and who knows what his fate might have been? There you have a very strong case for keeping it. Cases, so far from being unusual, are numerous where in petty sessions all over the country the Grand Jury think it desirable to stop the case and throw the bill out, and so give the prisoner a chance.

§ The ATTORNEY-GENERAL

My hon. and learned Friend is mistaken in thinking the Grand Jury threw out the bill in the Shepherd case. It never went before them.

§ Sir H. NIELD

If the Recorder withdrew it, it shows that discretion was exercised wisely to prevent the witnesses having to go before the grand jury on a charge that ought never to have been brought. I appeal to the Government to let the House have a free vote. It is of enormous importance. It is all very well to say it has been tried. It has not been tried under normal circumstances. The calendars were less then than they are now. The number of crimes was considerably diminished, to the credit of those who are generally tried in those Courts. They kept themselves quiet or went abroad for other purposes. At any rate, do not say, because it passed muster them, that it is necessarily a good thing to do away with it. I am sure the House and the country will be grateful if you do not abolish grand juries at Quarter Sessions. Although representations may be made from time to time in favour of abolition by the very men who are summoned on the grand juries, I am sure if you took a poll of them you would find them by no means hostile to it, because it is a safeguard.

§ Sir W. JOYNSON-HICKS

Everyone knows this is a non-political Bill and one which all who are interested in the administration of justice are very anxious to get through. We have only an hour and eight minutes to do it. May I make this suggestion. There is only one other Amendment of importance and that is on Clause 31. If it were possible to take the next two Amendments—they are only to carry out undertakings I gave in Committee—and then take the Amendment on Clause 31, if the hon. and learned Gentleman opposite would give me a 151 reasonable hope that I might get the Bill I would gladly leave this Clause to the unfettered decision of the House. I will not make a speech on it myself. I do not want to make an absolute bargain, but if the hon. and learned Gentleman will say he will do his best with his Friends to get the Bill through by 11 o’clock I will leave this here and now to the decision of the House.

152

§ Sir P. HASTINGS

The only thing I am concerned with is Clause 31, and provided we can have this left to the free Vote of the House I shall certainly do my best to see that the Bill gets through.

§ Question put, “That the words proposed to be left out, to the end of page 18, line 7, stand part of the Bill.”

§ The House divided: Ayes, 149; Noes, 184.

Original Post

Criminal Justice Act 1925

19 Power to dispense with grand jury at quarter sessions where all persons committed have pleaded guilty(1)If by the fifth day preceding the day appointed for holding any quarter sessions no persons have been committed for trial at the sessions except persons in respect of whom a certificate has been transmitted in pursuance of section four of the Administration of Justice Act, 1920, stating that they have pleaded guilty or admitted the truth of the charge, there shall be deemed to be no business requiring the attendance of grand jurors at that sessions, and the provisions of the Assizes and Quarter Sessions Act, 1908, shall apply accordingly.

(2)In any case to which this section applies an indictment against any person for the offence in respect of which he was committed for trial may be presented to the court without having been found by a grand jury, and, where an indictment is so presented, it shall be proceeded with in the same manner as it would have been proceeded with before the commencement of this Act, and all enactments and rules of law relating to procedure in connection with indictable offences shall have effect accordingly.

(3)An indictment against any person presented to a court of quarter sessions in pursuance of this section may contain, in addition to the counts for the offences specified in the caption of the depositions, any further counts founded on facts or evidence disclosed in any examination or deposition taken before a justice in the presence of the accused. A court of quarter sessions may in any case direct any such further counts as aforesaid to he added to any indictment presented to the court.

(4)Rules may he made under the Indictments Act, 1915, for carrying this section into effect, and in particular for modifying, so far as is necessary for the purpose of this section, any enactment, including any statutory form, and for applying with the necessary modifications the provisions of section three of the Indictable Offences Act, 1848, relating to certificates of an indictment having been found.

Original Post

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