Clause 1. — (Defence of poor persons committed for trial.)

Orders of the Day — Poor Prisoners' Defence Bill. – in the House of Commons on 2nd May 1930.

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Photo of Mr John Grace Mr John Grace , Wirral

I beg to move, in page 1, line 6, to leave out the words "committed for trial for," and to insert instead thereof the words "charged with."

This is an Amendment to change certain words in the first line of Sub-section (1) of this Clause. The Sub-section goes to the very root of the Bill, and it deals with a point which was not discussed in Committee. Apparently, the Committee devoted itself more to the question as to whether a poor person should be entitled to have the benefit of a leader. In my opinion, the change I propose would be of far greater benefit to a person charged with a criminal offence than any proposal to provide the services of a leading counsel. If one looks at the old Act of 1903, which was the first Act dealing with the question of poor prisoners defence, one finds that the Parliament of that time fell into what I think was an error, and this Bill also falls into the same error. In the Poor Prisoners' Defence Act of 1903 it is provided that: Where it appears, having regard to the nature of the defence set up by any poor prisoner as disclosed in the evidence given or statement made by them before the committing justices that it is desirable in the interests of justice that he should have legal aid in the preparation and conduct of his defence, and that his means are in-sufficient to enable him to obtain that aid, the committing justices may— That Act goes on to provide for free legal aid, but it is quite clear from the Act of 1903 that before any legal aid can be granted to a poor person, the evidence must have been taken and the defence disclosed. If a poor person refuses to disclose his evidence, or gave no indication of what his defence was before the committing magistrates, that person has not the privilege of having the benefit of legal aid. When one looks at Clause 1, it will be noticed that the Bill, in a curious way, divides this question into two parts. Clause 1 deals with persons charged with indictable offences, and under that Clause, the vicious principle is brought into play that, before free legal aid can be given, the person must have been committed. I consider that that is a fatal defect in the Bill as far as the interests of poor prisoners are concerned. Those who have had practical experience of these matters, as I have had for a great number of years, must agree—I think the Solicitor-General will agree—that cases in the criminal courts can be, and often are won or lost before the committal takes place, and whatever particular line the defence takes may prove fatal or successful to the person charged.

Under this Bill, we are still left in the old position laid down in the Act of 1903 that no poor prisoner who cannot afford to pay for a solicitor or a barrister is to be entitled under Sub-section (1) of this Clause to the benefit of that aid until he has been committed for trial. I know that the Solicitor-General will object that this is all wrong because the whole thing is provided for in Clause 2, but I do not agree. Clause 2 deals, not with the specific type of offences referred to in Clause I, namely, indictable offences, but with any offence, and, looking a little further down, one finds that the words "any offence" have a very serious qualification. One finds the words by reason of the gravity of the charge or of exceptional circumstances. In my opinion, the words "exceptional circumstances" are absolutely redundant to this Bill, and can never be brought into practical application in the Courts. The only word that can be brought into practical application is the word "gravity." Opinions may differ as to the meaning of the word "gravity." Some hon. Members might take the view that a person who was drunk was guilty of a grave offence. Others might take the view that an assault, or even some offence which involves a heavier punishment, might not be a grave offence. It is all a matter of opinion, and, under Clause 2 there is a discretion on the part of the justices who are trying the case.

Clause 2 applies to a court of summary jurisdiction who are trying the case. It certainly says also, "or examining justices," and it is possible that the words "examining justices" might include committing justices, although I think the words could have been framed in a somewhat clearer way. To my mind it is beyond all reasonable doubt that there must be a clear distinction between Clause I, which says that, where a person is charged with an indictable offence, he cannot have counsel assigned to him until after he has been committed, and Clause 2, which deals with cases of summary jurisdiction, where only a solicitor can be assigned, and then only after the magistrates have had an opportunity of considering the gravity of the offence and any exceptional circumstances. With the greatest respect to the many thousands of magistrates who administer the law throughout England, and who all do their best, I do not think it is fair that, in the case of the graver indictable offences, the matter should be left to the discretion of magistrates at all. Provided that these two points are estabished, namely, gravity of the offence—it must be a serious indictable offence—and that the man has not the money, I do not think it should be left, as it is left under Clause 2, to the discretion of the magistrates to decide whether a person shall have free legal aid or not.

In Clause 1 my principle is very largely accepted, because Sub-section (3) provides that, in cases where the offence of murder is in question, the Court has no discretion at all, but the magistrates, after committing, have to give free legal aid. There is another Amendment to Subsection (3) which really deals with the same point, but there, curiously enough, the framers of the Measure have left out the word "gravity," and apparently leave it open only to cases where the defence has been disclosed and the person has been committed for trial. That, obviously, means indictable offences. In the case of an indictable offence, the magistrates have a discretion to allow solicitors and barristers to defend persons, but only after the evidence has been gone into, and possibly some fatal statement has been made or some fatal question has been put by some unfortunate man or woman who has not had the benefit of being defended by counsel.

I want to put this provision in a slightly different form. In the case of a person who is to be charged with and tried for a serious offence, say murder, what happens? The police start to make their inquiries. They may have suspicions about a particular person, and we all know, from the interest that was taken in the matter not long ago, what care they have to take when they are making their investigations into the nature of some crime which they know to have been committed. When the police have made up their minds that they are going to make a definite charge against some person whom they have apprehended, the law is most clear that the proper caution has to be given, so that a person may be given every possible warning not to say or do anything which might place him at a disadvantage.

Then comes the stage when the man is brought before the magistrates, and here there seems to be a sort of hiatus, for the law suddenly leaves the unfortunate person to himself, isolated, helpless, hopeless, until he has been committed, and then, of course, the damage may have been done. Every member of this House who practises in the criminal courts knows that one of the most difficult things that a solicitor or barrister has to decide is the line which is to be taken in representing before magistrates a person who is likely to be committed on a serious indictable offence. Is one to disclose the nature of the defence? What questions should one ask? Is one going to remain silent and leave the Crown guessing as to what the defence will be, or to come forward openly, put one's client in the witness-box, and expose the whole of the defence? It is a very difficult question, and one which only people of experience and training can decide; how can the unfor- tunate prisoner himself decide it? And yet that is what very often happens.

Often one receives a brief with the depositions, and finds, at the end of the evidence given by the police and the witnesses for the Crown, that the unfortunate prisoner has asked a number of questions of the witnesses himself—stupid questions that, if he had had any legal training, he would never have asked. He has done it because is left there without any friends in Court to help him. I consider that, where you are dealing, under Clause I, with indictable offences—I disregard Clause 2 entirely—the person who is charged, if he can establish the fact that he has not the means to pay, should, at the very outset, before the depositions are taken, have explained to him his rights, and, if the Court is satisfied that he really is not able to find the means to defend himself, he should, at that early stage, long before the committal, be given the opportunity of having counsel to defend him.

The only alternative left, if this change which I ask for is not made, is that the evidence is taken, the brief is suddenly, on the opening day of an assize, hurled at some junior counsel, possibly half an hour before the trial comes on, he has possibly to borrow the depositions from the prosecuting counsel and pick up the matter as fast as he can. He is allowed to go into the cells and talk to his client and then he has to come up, ready to do the best he can with the material before him. I do not think in the case of poor persons charged with serious offences that is a right and proper procedure, and yet it goes on in every assize town throughout the country and has been going on for many years.

If my Amendment is adopted., that will all be brought to an end, because from the very outset, before any dangerous step has been taken, every prisoner who stood at the risk of being committed for trial would have an opportunity of legal aid and his counsel, if he is committed, could then be present at the trial, at quarter sessions or at the assizes, fully equipped with the information he required and without the danger of a serious blunder having been made in the court below. The change I suggest will only apply to indictable offences, that is to say, to more serious offences, and there is every possible safeguard. I do not think there need be any anxiety that this would seriously add to the cost of local authorities because, under paragraph (b), it is made perfectly clear that it shall only be given if it is shown to be desirable in the interests of justice that the prisoner should have legal aid. A man who is charged with a criminal offence, and who has the money to pay, would not go before the committing justices without having had every possible advice beforehand as to what he should do, whether he should remain silent or whether he should go into the box and expose his defence there and then. He would have every possible care and advice. It is hopeless to leave the Bill in its present state and say that only after the committing justices had gone into the matter and heard what the evidence is, and possibly what the defence is, is relief to be given. For these reasons, I hope the Committee will accept the Amendment.

Photo of Mr Cyril Atkinson Mr Cyril Atkinson , Altrincham

My hon. Friend has fairly well covered the ground but there are a few points I should like to make. This does not increase the number of cases in which counsel will be allotted to prisoners. They will still have to comply with the conditions set out in the latter part of Clause I. What it does is to vary the time at which the aid can be given. It enables it to be given at the very outset, instead of forcing the accused person to wait until he has been committed for trial. There must be many cases in which, if a man was represented before the examining magistrates, he would be acquitted then and there and never sent to trial. We all know of cases which have come on for trial in which, when the defence has been properly put, one wonders haw on earth the prisoner ever got there, because there seems to be no case against him. His mouth has been shut before the justices. He did not know how to make the points in his favour or how to cross-examine the witnesses. One advantage of this will be that an innocent man may very often escape the anxiety and the indignity of being committed for trial, because he will be able to show his innocence.

There is another thing. Under the Bill as it stands, a man charged with murder cannot have counsel allotted to him before the justices. One has only to state that to realise that the Bill is inadequate.

Photo of Mr Cyril Atkinson Mr Cyril Atkinson , Altrincham

Under Clause 2 he can only get a solicitor. It is not their line of business as it is ours. We spend our lives in court and solicitors do not. Many of them are as competent, if not more so, but a solicitor who may be delegated to assist a prisoner may not, probably will not, have the ability and the experience to cross-examine that counsel has. A man who can afford to pay will have the best counsel he can get, but once it is recognised that in certain cases it is in the interests of justice that a poor man should be properly defended, and when under this Bill he cannot get counsel allotted to him until after he has been committed for trial, I feel that something really must be done about it. It is often very important to pin your prosecuting witnesses to the story that they first tell. A witness may go into the box and give a very sketchy story of what his evidence it. Defending counsel pins him to details. "What is your recollection of this detail, what about that and the other?" He may succeed in destroying the story and showing that the man's recollection is very vague. If there is no one to do that, the prisoner's counsel does not get a chance till the day of the trial, when the witness has had time to read other people's depositions and, un-consciously, he thinks he remembers all sorts of details which he could not give if he told his story at the earliest moment. The examination and cross-examination of witnesses at the earliest moment is very important.

It is again of vital importance at the very earliest moment to examine the circumstances under which someone has purported to identify a prisoner. If it is left over for weeks afterwards, he could not do it nearly as effectively. For these reasons alone, it seems to me that this alteration ought to be made. The effect is that in cases in which he would be entitled later on to legal aid he would be able to get that assistance at the very earliest moment when it was really of the greatest value to him and might lead to his acquittal and save him the indignity of a trial. If the House were to accept this Amendment, a further drafting Amendment would be necessary in the third line, so that the Clause would read: the preparation and conduct of his defence both before the justices and at the trial. Such an Amendment would be necessary, and it could be moved if the Committee agreed to accept this Amendment. It would only be consequential.

Photo of Mr John Withers Mr John Withers , Cambridge University

I am rather astonished at the hon. Gentleman who stated that this is an ill-considered Bill. If there has ever been a Bill which has been fully considered, this is one. I will give a short resumé of what has been done. First of all, a committee under Mr. Justice Finlay sat and reported. Secondly, I introduced the Bill into this House. It was then examined very carefully by the Home Office under the last Government, and a great amount of correspondence and discussion ensued upon the form of the Bill. The present Government came in, and they again very properly looked into the Bill. Every word of the Bill was gone over again. The Law Officers have seen it, and the Home Office has gone through it, and everything has been done that can be done. It has been considered down to the last comma. Therefore, I beg of the Committee to be very chary indeed of altering the Bill without very careful consideration. The whole question has been raised on this little Amendment. In order to deal with the Amendment, the speakers have had to discuss the Bill. I must ask to be allowed to deal with what they have said. The Bill falls into two parts—be-fore the justices and before the superior courts. The House will realise that the justices can sit in two capacities. First, they can sit as a court of summary jurisdiction, and, secondly, they can sit as examining magistrates for the purpose of committing a prisoner to the superior courts, which are the quarter sessions and assizes. What happens before courts of summary jurisdiction is dealt with in Clause 2. In that Clause, it says that magistrates, directly a prisoner comes before them, can grant legal aid if they are satisfied that by reason of the gravity of the charge or of exceptional circumstances it is desirable in the interests of justice that he should have free legal aid. No doubt directly the magistrates saw that a case came within their discretion they would adjourn it to enable the prisoner to have the necessary legal aid. All that has been said with regard to the prisoner not having aid at once is—I do not wish to use the expression which was coming to my lips—rather misleading to the House. I beg of hon. Members to put that idea out of their minds altogether. If a man is a poor prisoner coming under the purview of this Measure, he will get legal aid at once. The question has arisen whether he ought to have a barrister. In the police courts the ordinary rule is for people to be represented by solicitors, and I should think that in 999 cases out of every 1,000 everything is perfectly all right. The ordinary man, however rich he is, is quite content, as a rule, with a solicitor, and why in a particular case of this kind, when you are spending public money, it should be necessary to have a barrister I really do not know. The Committee might take the view that the aid of a barrister should be allowed. If they like to add that benefit to the other benefits for which I am asking on behalf of the poor, I shall be very gratified, but I do not want the Bill to be hung up because of a tiny thing of that kind.

The next point relates to the actual wording of the Amendment. Clause 1 deals with the proceedings before the superior courts. I have dealt with the case of the prisoner who comes before the magistrates. Under this Clause, the prisoner has been committed for trial and is going to be brought before the court for his trial, and, even if the magistrates have not thought fit to allow legal aid for the poor prisoner, the judge or chairman of the court can do so. That is a second line of defence. My suggestion is that, having, by Clause 2, got rid of the difficulty before the magistrates, we now see that the difficulty has also been got rid of before quarter sessions and before the judge of assize. Before quarter sessions and the judge of assize the solicitors have not audience, and a prisoner can be provided with the aid of a barrister and a solicitor. The Clause says: Any person committed for trial. That means to say, that he has been sent by the justices for trial. This Clause is limited to that. It is not intended to deal with the poor people who have their cases presented before justices. Exhypothesi it has been dealt with by the justices already. All the observations which have already been made ought really to be applied to the merits of Clause 2. They have nothing whatever to do with Clause 1. The only point which strikes me, and I am sure the Solicitor-General will consider it if it goes beyond this House, is that possibly a person who escapes legal aid might be indicted before quarter sessions or assizes on an indictment presented by the grand jury or by the Attorney-General. These cases are so very rare that I do not think it would be worth while holding up the Bill for this purpose. Personally, I do not think there is any objection to taking out the words "committed for trial," but, if you do that, you will have to alter the whole of Sub-section (2). It will really alter the whole framework of the Measure. The wording has been very carefully discussed. It was discussed for a whole day in this House on the 8th November. It went up to Committee and was discussed there, and I would suggest that these are not points which ought to be brought up on this occasion. I wish to oppose the Amendment, and I ask the Committee to reject it.

Photo of Mr Edward Marjoribanks Mr Edward Marjoribanks , Eastbourne

I find myself in the painful position of disagreeing with my senior and learned colleague, and I wish to reinforce the view put forward by my hon. Friend the Member for Cambridge University (Sir J. Withers). The only powerful argument in favour of this Amendment is that in the first instance counsel cannot be granted under this Bill. Is that any very great objection to the Bill? At any rate, it should have been brought up as an Amendment to Clause 2. As my hon. Friend has said, the objections brought forward under Clause 1 alter the whole scope of the Clause and would entail the redrafting, or the exclusion, of the latter part of the Clause. Anybody who has had any knowledge or experience of police court proceedings realises that all that is necessary can be done by solicitors. Many solicitors have become famous for their magnificent performances in the police court. During the past century there have been a number of solicitors who have been made famous for their magnificent police court advocacy. It is sometimes better not to have counsel acting in a prisoner's interest in a police court. The solicitor can take the chestnuts out of the fire, and counsel at the trial can take an altogether different line. I am speaking in the interests of prisoners, and I think it is far better that a prisoner should not be represented by counsel at these proceedings. I could give examples where a celebrated solicitor was able to create a great wave of public sympathy for a prisoner which really did him a very great deal of good when before the jury and during the subsequent proceedings. This left the learned counsel in a position to put forward a more classical case before the judge and jury.

Photo of Mr John Grace Mr John Grace , Wirral

My only desire in moving this Amendment is that there should be somebody to represent prisoners before the magistrate commits. I do not mind whether the person is a barrister or an experienced solicitor, but there should be somebody there. Clause 2 does not provide and make certain that a solicitor shall be there. It is discretionary, and I desire to make it compulsory. If a man is charged on an indictable offence before a committing magistrate, he should have a legal representative.

Photo of Mr Edward Marjoribanks Mr Edward Marjoribanks , Eastbourne

We have now a real difference of opinion on the matter. We maintain that Clause 2 is sufficient for the purpose, and that under Clause 2 it is ensured that in a case of exceptional difficulty the prisoner will be represented by a solicitor. The committing justices will have justification only in Clause 2 to give that aid. We must remember that we are dealing with exceptional cases. I think we can leave it to the magistrates to see that in any case of difficulty that a solicitor can represent a prisoner at the police court. I think that will satisfy the requirements put forward by my hon. Friend. I think that Clause 2 is really a genuine Clause. Coming to the main question, the important point is to get this Bill through to-day. If we are to re-draft the whole of Clause 1, the Bill will not get through. It is of vital importance for the poor prisoners of this country that this Bill should get through to-day. Therefore, I have very great pleasure in opposing the Amendment.

Photo of Mr Robin Turton Mr Robin Turton , Thirsk and Malton

I hope the Committee will not agree to accept the Amendment. The hon. Member for Wirral (Mr. Grace) has defined this Amendment as giving legal aid in all cases to the prisoner in the court below, but I think it would be wise for the Committee to remember that if the Amendment were carried and Clause 1 (1) then read: Any person charged with an indictable offence there would still be the expression left in Sub-section 3, (b) lines 11 and 12 of Clause 1. That expression is: having regard to all the circumstances of the case. There would still therefore be a wide limitation on the granting of aid. No one will deny that, murder is a grave charge, but there there is no discretion. In Sub-section (3) (b) the words: having regard to all the circumstances of the case, appear. That is very parallel to the words exceptional circumstances which appear in Clause 2. In effect, this Amendment would achieve nothing except to muddle the structure of the Bill. As far as I can understand the Amendment, it is an objection that in our manufacturing of the Bill we have put the higher court before the lower court. The hon. Member for Wirral thinks perhaps that this Bill should be in the sequence of events which occur in criminal administration. It would be very unwise at this stage, when we have spent so much time in trying to get this Bill passed into law, that we should seek to re-manufacture the whole Bill and to put a different meaning on defence certificate and legal aid certificate.

12 n.

The hon. and learned Member for Altrincham (Mr. Atkinson) put a different point. His point was that before the committing justices in the court of summary jurisdiction you need counsel to defend the prisoner. That point has been considered ever since the Act of 1903 was introduced. There was a Select Committee on the Act of 1903 which considered whether the sphere for the granting of legal aid should be extended to the court below, and it was the considered opinion at that time that you should first try it in the higher court and if it succeeded there it could be introduced into the court below. That came out in the evidence of Mr. Buszard, who was at that time treasurer of the Inner Temple. It also came out in the evidence of Sir Harry Poland, who was one of the few witnesses in that Select Committee who opposed the Act of 1903. He made a very strong point that if aid was given at all, it should be given in the courts below, but not through counsel, his point being that one finds very few members of the Bar regularly attending the courts of summary jurisdiction. If the principle were extended as the hon. and learned Member for Altrincham wishes it to be extended, it would be of no effect at all, because we should find no members of the Bar present in the lower court to whom the prisoner would be assigned. It has been suggested that junior members of the Bar would then flock to the court of summary jurisdiction, but that would mean a terrible increase in the indignity of the law from which we suffer at the present time under the system of dock briefs, which I hope will be abolished.

The hon. Member for Wirral has made the very curious point that in Clause 2 the words: any person charged before them with any offence do not include any person charged before them with any indictable offence. In this case, as in other cases of logic, the part must be included in the whole, and "any offence" must quite clearly include "any indictable offence". If we allow that very simple process of logic to prevail, the whole weight of the Amendment falls to the ground, for you will then find that the intention of the hon. Member for Wirral was already put into the Bill by my hon. Friend the Member for Cambridge University when he drafted the Bill. I again ask the House not to accept the Amendment.

Photo of Mr John McShane Mr John McShane , Walsall

I hope that there will be no more time wasted upon the Committee stage of this Bill.

Photo of Mr Frederick Macquisten Mr Frederick Macquisten , Argyll

Then why not sit down?

Photo of Mr John McShane Mr John McShane , Walsall

The hon. and learned Member is an adept at wasting time, and is an authority on the question. I repeat that I hope that we shall not have more time wasted upon the Bill by those who, it seems to me, have not until this morning come into close contact with the Bill. On the Second Reading of the Bill there were many of us who thought that it did not go nearly far enough. We could have found plenty of flaws in the Bill, and we wished to remedy those flaws, but as the Bill seemed to be what I might call the lowest common denominator of the House, we allowed our own particular views on the flaws in the Bill to be sunk for the sake of getting the Bill as it was. The truth is that there is just a risk that a Bill which we are all anxious to pass in the interests of poor people may be endangered. It is because of that that I hope those who have been proposing Amendments to-day will not proceed any further with them. Any Attempt to make the Bill a really good Bill may wreck the Bill altogether.

The Bill is a perfectly innocent Bill, innocent, indeed, in a, variety of ways. Attempts have been made before without success to get a Bill of this nature through Parliament. I hope that the Committee will get on to the Report stage and Third Reading very quickly. The poor man appearing before the magistrate is already safeguarded in the Bill to the extent that he will have a solicitor. It is true that members of the higher ranks of the legal profession, probably on the principle that "wheresoever the corpse is, there shall the ravens be gathered together," are anxious that they may also come in not merely at the death, but at the beginning of the death. I do not suggest it entirely, but it may be that a spirit like that, not altogether altruistic, is animating members of the profession, not in this House naturally, but still in the country. They think that they should be represented. Taking the Bill in relation to the position in the country to-day, it is a distinct advance and help to poor people. I plead with hon. Members opposite to enable us to get the Bill through quickly. There are in poverty-stricken areas to-day men and women who, if this Bill is not allowed to pass, may be put into prison because of their complete inability to express themselves, even intelligently, in a magistrates' court. Those of us who have lived and been reared amongst these people know that they are hopelessly inarticulate in such matters.

Photo of Mr Dennis Herbert Mr Dennis Herbert , Watford

I hope that the hon. Member will believe me when I say that there is no one in the Committee more anxious than I am to see this Bill passed, but I must ask him also to allow me to claim the indulgence of the Committee while I make a few remarks on a subject on which I have had an advantage which is not shared by any other hon. Member present, and only by two hon. Members of the House—of having served on the Committee which was appointed under the Chairmanship of Mr. Justice Finlay in 1925 to inquire into the whole question of the legal aid of poor prisoners. Strongly as I support the Bill, I regret very much that my hon. Friend the Member for Cambridge University (Sir J. Withers) and the hon. Member for Eastbourne (Mr. Marjoribanks) have been inclined to oppose the Amendment so strongly.

I have, unfortunately, not been able to provide myself with a copy of the first report of the Finlay Committee, but I have a very distinct recollection that the whole evidence before that Committee emphasised the extreme importance, in cases of murder and other serious charges where legal aid was to be given, of legal aid being given from the earliest possible moment when a prisoner was first charged. There is no one in this Committee who can speak with the authority of the many witnesses before the Finlay Committee, and those witnesses were entirely agreed upon the point that I have mentioned. Therefore, we have seriously to consider whether the Amendment is necessary or whether the matter is sufficiently covered by Clause 2.

I regret that my usually clear-headed friend the hon. Member for Cambridge University seems to have failed to realise the exact principle upon which the scheme of the Bill is drawn. Clause 1 is undoubtedly intended to deal with the more serious cases which are committed for trial. Clause 2 is not intended to deal with those cases at all; it is intended to deal with cases that are to be heard by the court of petty sessions and are not to go further. Therefore, if you are giving the justices under Clause 2 a discretion to grant their particular certificate, the more clear-headed bench of magistrates might well say: "No. This is a case of murder; that is a very serious indictable offence which we cannot deal with in any other way than by either discharging the prisoner or committing him for trial. If he is committed for trial there is other machinery for giving him legal aid, and therefore this is not a case where we should give him legal aid." There is, therefore, a definite danger that, with the best will in the world, the bench of magistrates may not think it right to grant a certificate under Clause 2.

There is another point. Clause 2 does not give the right to grant a defence certificate; it gives only the right to grant a legal aid certificate, which is a different thing. Will this be a good Bill if it provides that where a wretched man is charged with murder or some serious indictable offence he is to get, in the first instance, a legal aid certificate which will only carry him the short distance covered by the preparation and conduct of his defence before the petty sessional justices, and then has to get another defence certificate from the committing justices to deal with the rest of his trial? Is that going to make a good Bill of it? I am sure my hon. Friend will agree with me that he is using an argument which is a piece of special pleading rather than one for the improvement of the Bill, when he ventures to argue that this matter is covered by Clause 2. I suggest that for the reasons which I have stated, this Amendment is very necessary.

The only argument against it which has had the slightest weight with me is the question of whether, if we pass it, we are going to endanger the Bill. There is, however, comparatively little else of very great importance to be considered in connection with the Bill. It is now a quarter-past twelve o'clock, and we have very nearly four hours in which to deal with it, and I think we can perfectly well deal with it in much less time than that. I am sure I may say, too, that the Second Chamber is very sympathetic as regards this Bill, and that any polishing-up which may be necessary will be done there, with the assistance of some of the finest lawyers in the country. I venture to suggest that any other alteration which would be involved in the passing of this Amendment now, is very slight indeed. I have handed in a manuscript Amend- ment which I imagine we should have to take on the Report stage if this Amendment were carried, and I will indicate what that Amendment is, in order to show how I think this matter can be made complete. The object of the present Amendment is to provide for the granting of a certificate to any person who is "charged," instead of to any person who is "committed." When we come to Sub-section (2) we find that the people who may grant a certificate, are the committing justices or the judge or chairman of the court before which the man is to be tried. At the stage where the man is being first charged, therefore, there is no one who can grant the certificate, because, as the Bill stands, it is the "committing justices" who are to do so but all that is required is to insert new words before the words "by the committing justices," and to make the Sub-section include "the justices before whom he is charged."

I think that Amendment would complete the whole business, and I seriously appeal to my hon. Friends in charge of this Bill to help in making it a Bill which will meet the ideas of the very experienced witnesses who were heard before the Committee to which I have referred. I ask them to accept this Amendment and also the further Amendment which I have suggested. I feel certain that without these alterations, the Bill will suffer from a serious blot and I am equally certain that should these Amendments necessitate any further consequential drafting Amendment we may rely on those Amendments being made in another place.

Photo of Mr James Melville Mr James Melville , Gateshead

I hope that the Committee will leave the Bill as it stands in this respect. I think the hon. Member for Watford (Sir D. Herbert) is under a misapprehension as to the effect of Clause 2. I can have no doubt myself that Clause 2 applies both to offences which are punishable only at summary jurisdiction, and also to indictable offences. It expressly provides that if it appears to a court of summary jurisdiction or examining justices that the means of any person charged before them "with any offence" are insufficient, and so forth. "Any offence" is any offence.

Photo of Mr Dennis Herbert Mr Dennis Herbert , Watford

I entirely agree, but the point is that, although the justices have the discretion, and may exercise that discretion, all they can do is to grant a legal aid certificate, and not a defence certificate.

Photo of Mr James Melville Mr James Melville , Gateshead

We have so far reached some measure of agreement, I think, as to the meaning of the words "any offence." Let us now follow what will happen in such cases.

Photo of Mr Frederick Macquisten Mr Frederick Macquisten , Argyll

May I draw the Solicitor-General's attention to the part of Clause 2 which says that the man should have free legal aid in the preparation and conduct of his defence "before them." Is not that a limitation of the Clause to the man's defence before the justices?

Photo of Mr James Melville Mr James Melville , Gateshead

Naturally, it is at that time that the legal aid certificate is given, and it is in respect of the defence before the magistrates—which, we are agreed, applies just as much to the indictable offence which is being inquired into before the magistrates, as to the offence which the magistrates themselves can deal with in their summary jurisdiction. That certificate covers the assignment of a solicitor to conduct the defence before the magistrates. The next stage—which, of course, can only be reached in the instance of an indictable offence—is when the man is committed for trial. Then, the committing magistrates, when they have decided to commit for trial, may grant a defence certificate with the consequence that a solicitor—probably the same solicitor as was assigned under the earlier certificate—will be assigned to prepare the defence or to continue the defence, between the date of the committal and the date of the Assizes or Quarter Sessions. Then there will be the assignment of counsel. Thus there will be, as was recommended by the Committee, presided over by Mr. Justice Finlay, provision at the earliest possible moment—that is to say, at the moment when the man is first charged before the magistrate—for the preparation and conduct of the defence up to the conclusion of the trial. The only real division of opinion which I can see is as to whether it is desirable or not to cast upon local funds the burden of providing counsel at petty sessions. [HON. MEMBERS: "No!"] I, for my part, think it would be quite unworkable if we tried to do so.

Let it be remembered that this is, in no sense, any kind of trade Bill. The members of the Bar are not asking Parliament to pass this Bill in their interests. In fact it is a Bill which will cast upon members of the Bar and solicitors an extended duty of appearing in these criminal cases for most insufficient reward, if the only test to be applied is that of the actual pecuniary reward, though a further reward will be that of carrying out a public duty, which I believe the profession are willing to carry out. Obviously, it would be absurd to expect that for the very small maximum fee of three guineas practising counsel should leave London and go to some petty sessions for that one particular case. It would be undesirable also for this reason, that we want this Bill, when it becomes an Act, to be worked. We do not want it to be overloaded, and we do not want it to be so overloaded with costs that it may make local justices rather unwilling to work it. We want it to be an Act under which this power which we are giving to justices will be fairly and freely used. I hope the Committee will pass the Bill in that respect as it stands, and I rather hope that the hon. Gentleman who moved the Amendment may see his way to withdraw it.

Photo of Mr Frederick Macquisten Mr Frederick Macquisten , Argyll

I am not entirely satisfied with the terms of the Clause, and I cannot help feeling that line 25 in Clause 2, to which I have called attention, seems to contemplate that the legal aid certificate is to be granted by magistrates in the cases which they themselves are going to try. In regard to the graver indictable offences dealt with under Clause 1, it seems to me that there may well be cases of helpless men, who are quite innocent, making some rash statement, quite foolishly, and then it will be too late to give him legal aid, once he is committed.

In Scotland we have had, since the early part of the fifteenth century, namely, since 1425, solicitors and counsel conscripted for the benefit of the poor in criminal and in civil cases, and the sys tem has been very beneficial indeed. A man is taken up, and he has one of the solicitors in the town assigned for his defence. We have always so many men who have got to serve in this way, unless the prisoner has somebody to represent him, and he can always ask for help. There are so many solicitors and there are six counsel who are conscripted, and they defend. In a civil court, if they should succeed in winning the case, they get their fee charged against the other side, but in the criminal cases, unless the accused has got somebody, it is another matter. The criminal practice in Scotland is the most unremunerative of all the practice that the Bar takes up, and there are many murder trials—in fact, I have been in one or two myself—where there is no prospect whatever of anything in the nature of a fee, and counsel have to travel for some distance and pay their out-of-pocket expenses as well. We do it as a matter of course.

Junior counsel go on circuit and take up these cases, and they do not get any public assistance at all. A man comes up before a court and has a solicitor for the poor, and if he is committed to the High Court by the sheriff or the county court judge, as he is called in England, then one of the counsel for the poor is allocated for his defence. It is the rule of our Bar that you are a counsel for the poor, and if you have a civil case in which you may have received a most satisfactory fee, and if you have a poor case also, it is your duty to send back the case that is feed and stick to the poor man. That has always been the practice in Scotland, and one does it instinctively.

Unless it is much more clear in Clause 2 than it appears to be that the accused man is to have the benefit of advice right from the start, I think this Bill will not serve so good a purpose as we might hope, because you will have a fellow coming into court to some extent already, so to speak, with a rope round his neck. I do not see why this Amendment cannot be accepted, with the Amendment which has been suggested by the hon. Member for Watford (Sir D. Herbert), so that a man in the case of a serious offence should have the benefit of the advice either of solicitor or counsel right from the start.

Photo of Mr George Knight Mr George Knight , Nottingham South

I join in the appeal that the Committee should come to a decision at the earliest possible moment. We had a most interesting discussion. The hon. and learned Member for Argyll (Mr. Macquisten) has referred to the splendid system in Scotland, which has continued for centuries, and it was a writer to the signet who, in the early part of this century, came to London and stirred up a few of us to begin an agitation which led to the 1903 Statute. The hon. Member for Watford (Sir D. Herbert) gave the Committee the advantage of his assistance and referred to the numerous persons who gave evidence before the Committee. I do not want to make personal references, but from 1903 on I have had considerable experience of the working of these matters, and I note with satisfaction that the difficulties and prejudices which had to be overcome in bringing about, the 1903 Statute have largely disappeared. There is general agreement here as to the objects of this Bill, but there remains, I think, some misunderstanding as to the methods to be adopted. The cause of the difficulty was pointed out by the Solicitor-General, and if his view of the effect of Clause 2 is adopted and justices are empowered to supply legal aid in respect of any offence—

Photo of Mr John Grace Mr John Grace , Wirral

It is not "any offence," because if the hon. and learned Member will read the whole Clause, he will see that there are qualifying words, such as "the circumstances of the case."

Photo of Mr George Knight Mr George Knight , Nottingham South

The sort of case to which the hon. Member refers emphasizes my contention. It is the greatest scandal in the present administration of justice that poor people should go to court un-helped, and my hon. and learned Friend is most anxious that that scandal should be removed, and the promoters of the Bill are pursuing this Bill for the purpose of ending that scandal. I ask the hon. Member, in the light of the advice he has received from the Law Officer present, Lo consider that there is something in the Bill which provides for all cases, so that no person by reason of his poverty shall stand unrepresented in our courts. Therefore I say, with all respect, that the general scheme of this Bill does remove a, serious public grievance. After this general discussion on the view brought forward by the learned Solicitor-General, I would ask my hon. Friend to consider whether his object is not secured, and to assist the Committee by now withdrawing his Amendment.

Photo of Mr Michael Beaumont Mr Michael Beaumont , Aylesbury

We have listened for some time to a disquisition of legal opinion. [HON. MEMBERS: "Divide!"] It would not be well to divide on this matter until the ordinary lay mind has been expressed. We have heard wrangling from various legal gentlemen on both sides of the Committee and I do not think that their speeches have made in any way for clarity. Certainly nothing has been said against this Amendment which, to the lay mind, has given any reason for not accepting it. Speaking as a magistrate and as a member of the public, it seems to me that this Amendment is perfectly harmless, and if it has any effect at all, about which there seems to be a certain amount of difference of opinion among legal members, it will give, if possible, a better chance to the poor prisoner. I am not, in the ordinary matters of life, a violent enthusiast for equality, but I do think that before the law equality is an absolute essential, and if there is anything in this Amendment, as there seems clearly to be, which will put the poor man in a better position, or in a position before the law nearer to that of the rich man—it is certain that no one who could afford it would ever tackle the law without a lawyer—he cannot afford it afterwards, as one of my hon. Friends points out—if there is anything in this Amendment which is going to increase the chance of the poor man having the best possible legal aid at the beginning of his being charged to the end of his trial, then, I think, the Amendment should be carried. I hope that the Committee, therefore, will support this Amendment, always supposing it will not, as I do not think it will, stop the final passage of this Bill.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

I join with my hon. Friend in being one of the very few Members taking part in the discussion on this Bill who are not lawyers. I have been in that position before, and I have commented on the fact before that when lawyers get talking there is a tremendous amount of time wasted. I will not follow the average lawyer who has spoken here in appealing to hon. Members to shorten the discussion. Some have spoken for five minutes with an appeal to shorten the discussion, and then have rambled round the question in a way which almost shocked me. Hon. Me ethers on one side and the other have been taking up little points, complicated bits from the Bill here and there, trying to make it into a minute jig-saw puzzle; but the real point is, are we going to try and give these poor people help at the earliest possible moment? I would ask learned gents here not to talk about well-known lawyers or barristers in this matter as they are not the people who will deal with these cases. It will be the comparatively poor lawyers who will be dealing, in the main, with these cases. The others, whether they are sitting round me or not, will not come into the picture.

My hon. Friend the Member for Cambridge University (Sir J. Withers) absolutely gave his own case away, He became a good old Tory for one minute, and appealed about public money, and naturally touched my heart. Naturally, I would not wish to waste public money on any occasion, but if there is any need upon this Amendment to consider public money, it means that these poor people will get their help early. He gave his whole case away, apart from technicalities, by making that appeal on behalf of public money. The learned Solicitor-General also gave his case away, because he based it, to a very large extent, on the fact that we must be careful as far as public funds are concerned. Once you have got to that point, you admit what ran through the whole of the speech of the proposer of the Amendment, that it will give these people efficient help at an early stage in the trial. That is the point I want to put. I have heard in this House over and over again that the courts of this country are congested at every stage. They are hopelessly over-congested, although, of course, they are not congested enough to satisfy the lawyers. That will never be, but they are congested enough as far as the ordinary public is concerned. If a man can get really good advice early in the history of the sequence of the trial, that means that there is a much greater chance of his not having to go from one court to another. For that reason, we are very likely by this Amendment to be able to economise public expenditure.

The other point which I wish to raise is far more important. It is certain, from the ordinary person's point of view, that we can under this Amendment, without hurting the Bill, do something to get an innocent man off rather more quickly than at the present time. That is the object of the Amendment. If a man is committed for trial and is badly off, he generally cannot get bail. That means that he has to wait for his trial in gaol. It breaks up the man's life, and takes him away from his employment. Surely, hon. Members opposite might on this occasion join with some of us in the appeal which we are making to the promoters of the Bill, who I believe in their hearts, would like to do their best, although they have been rather hard-hearted this morning. A certificate should not be given for one period of the proceedings only, but should run right through. The Amendment is not a matter of giving a certificate merely ab ovo; it is essential that the certificate should run right through to the end.

Photo of Mr Walter Greaves-Lord Mr Walter Greaves-Lord , Lambeth Norwood

I hope that the Committee will not follow the example of the hon. Member for Torquay (Mr. C. Williams) and waste any further time upon this

Amendment. It does not add one safeguard to the accused person; it merely creates a difficulty. So far as there is any trouble which may arise with regard to the person charged before the court of summary jurisdiction, it can adequately be met by subsequent Clauses in the Bill. The Amendment would merely create difficulty, which would lead to waste of public money and time, and would not help the accused person one iota. I am anxious to get this Bill through, because it has points of great value in the administration of justice, and I hope that the Committee will waste no further time on the Amendment.

Mr. EDE rose in his place, and claimed to move, "That the Question be now put."

Question put, "That the Question be now put."

The Committee divided: Ayes, 158; Noes, 44.

Division No. 268.]AYES.[12.46 p.m.
Arnott, JohnHarbord, A.Morris-Jones, Dr. J. H. (Denbigh)
Aske, Sir RobertHayday, ArthurMort, D. L.
Barnes, Alfred JohnHayes, John HenryMoses, J. J. H.
Batey, JosephHerrlotts, J.Oliver, P. M. (Man., Blackley)
Benn, Rt. Hon. WedgwoodHirst, G. H. (York W. R. Wentworth)Palin, John Henry
Benson, G.Hirst, W. (Bradford, South)Palmer, E. T.
Bentham, Dr. EthelHoffman, P. C.Parkinson, John Allen (Wigan)
Bevan, Aneurin (Ebbw Vale)Hollins, A.Perry, S. F.
Brockway, A. FennerHudson, James H. (Huddersfield)Peters, Dr. Sidney John
Brothers, M.Hunter, Dr. JosephPethick-Lawrence, F. W.
Buchanan, G.Isaacs, GeorgePhillips, Dr. Marion
Buxton, C. R. (Yorks, W. R. Elland)Jenkins, W. (Glamorgan, Neath)Pole, Major D. G.
Buxton, Rt. Hon. Noel (Norfolk, N.)John, William (Rhondda, West)Potts, John S.
Carter, W. (St. Pancras, S. W.)Jowett, Rt. Hon. F. W.Quibell, D. F. K.
Charleton, H. C.Kennedy, ThomasRamsay, T. B. Wilson
Chater, DanielKinley, J.Raynes, W. R.
Clynes, Rt. Hon. John R.Knight, HolfordRichardson, R. (Houghton-le-Spring)
Daggar, GeorgeLathan, G.Ritson, J.
Dallas, GeorgeLaw, A. (Rosendale)Romeril, H. G.
Davies, Rhys John (Westhoughton)Lawson, John JamesRosbotham, D. S. T.
Denman, Hon. R. D.Lawther, W. (Barnard Castle)Rowson, Guy
Dickson, T.Leach, W.Samuel, H. W. (Swansea, West)
Dukes, C.Lee, Frank (Derby, N. E.)Sanders, W. S.
Duncan, CharlesLee, Jennie (Lanark, Northern)Sandham, E.
Edge, Sir WilliamLees, J.Sawyer, G. F.
Edmunds, J. E.Lindley, Fred W.Sexton, James
Edwards, C. (Monmouth, Bedwellty)Longbottom, A. W.Shakespeare, Geoffrey H.
Edwards, E. (Morpeth)Longden, F.Sherwood, G. H.
Egan, W. H.Lovat-Fraser, J. A.Shield, George William
Freeman, PeterMcElwee, A.Shillaker, J. F.
Gardner, B. W. (West Ham, Upton)McEntee, V. L.Shinwell, E.
Gardner, J. P. (Hammersmith, N.)MacLaren, AndrewShort, Alfred (Wednesbury)
George, Major G. Lloyd (Pembroke)McShane, John JamesSimmons, C. J.
Gibbins, JosephMansfield, W.Sitch, Charles H.
Gibson, H. M. (Lancs, Mossley)March, S.Smith, Alfred (Sunderland)
Gillett, George M.Marjoribanks, E. C.Smith, Ben (Bermondsey, Rotherhithe)
Glassey, A. E.Marley, J.Smith, Frank (Nuneaton)
Gossling, A. G.Marshall, FredSmith, Rennie (Penistone)
Greaves-Lord, Sir WalterMathers, GeorgeSmith, Tom (Pontefract)
Grenfell. D. R. (Glamorgan)Maxton, JamesSmith, W. R. (Norwich)
Griffith, F. Kingsley (Middlesbro' W.)Melville, Sir JamesSnell, Harry
Grundy, Thomas W.Messer, FredSorensen, R.
Hall, F. (York, W. R., Normanton)Middleton, G.Stamford, Thomas W.
Hell, G. H. (Merthyr Tydvil)Milner, Major J.Stephen, Campbell
Hamilton, Sir R. (Orkney & Zetland)Morris, Rhys HopkinsStrauss, G. R.
Sutton, J. E.Watkins, F. C.Williams, T. (York, Don Valley)
Taylor, W. B. (Norfolk, S. W.)Watts-Morgan, Lt.-Col. D. (Rhondda)Wilson, C. H. (Sheffield, Attercliffe)
Thurtle, ErnestWellock, WilfredWilson, R. J. (Jarrow)
Tillett, BenWelsh, James C. (Coatbridge)Winterton, G. E.(Leicester, Loughb'gh)
Tinker, John JosephWest, F. R.Withers, Sir John James
Turton, Robert HughWhiteley, Wilfrid (Blrm., Ladywood)
Viant, S. P.Whiteley, William (Blaydon)TELLERS FOR THE AYES.—
Wallace, H. W.Williams, David (Swansea, East)Mr. Ede and Mr. Muggeridge.
Wellhead, Richard C.Williams, Dr. J. H. (Llanelly)
NOES.
Atkinson, C.Herbert, Sir Dennis (Hertford)Ross, Major Ronald D.
Beaumont, M. W.Hills, Major Rt. Hon. John WallerRussell, Alexander West (Tynemouth)
Bourne, Captain Robert CroftHoward-Bury, Colonel C. K.Sandeman, Sir N. Stewart
Brown, Brig.-Gen. H. C. (Berks, Newb'y)Leighton, Major B. E. P.Savery, S. S.
Buchan, JohnLymington, ViscountSimms, Major-General J.
Butler, R. A.Macquisten, F. A.Smith-Carington, Neville W.
Cautley, Sir Henry S.Margesson, Captain H. D.Titchfield, Major the Marquess of
Davies, Dr. VernonMeller, R. J.Ward, Lieut.-Col. Sir A. Lambert
Dugdale, Capt. T. L.Morrlson, W. S. (Glos., Cirencester)Warrender, Sir Victor
Fermoy, LordMuirhead, A. J.Wells, Sydney R.
Forestier-Walker, Sir L.Oman, Sir Charles William C.Williams, Charles (Devon, Torquay)
Fremantle, Lieut.-Colonel Francls E.Peto, Sir Basil E. (Devon, Barnstaple)Windsor-Clive, Lieut.-Colonel George
Hannon, Patrick Joseph HenryRamsbotham, H.Womersley, W. J.
Haslam, Henry C.Roberts, Sir Samuel (Ecclesall)
Hennessy, Major Sir G. R. J.Rodd, Rt. Hon. Sir James RennellTELLERS FOR THE NOES.—
Mr. Grace and Commander Southby.

Question put accordingly, "That the words proposed to be left out stand part of the Clause."

The Committee divided: Ayes, 177; Noes, 31.

Division No. 269.]AYES.[12.58 p.m.
Albery, Irving JamesGibbins, JosephMcElwee, A.
Arnott, JohnGibson, H. M. (Lancs, Mossley)McEntee, V. L.
Aske, Sir RobertGillett, George M.McShane, John James
Barnes, Alfred JohnGlassey, A. E.Mansfield, W.
Batey, JosephGossling, A. G.March, S.
Beckett, John (Camberwell, Peckham)Gray, MilnerMarjoribanks, E. C.
Benn, Rt. Hon. WedgwoodGrenfell, D. R. (Glamorgan)Marley, J.
Benson, G.Griffith, F. Kingsley (Middlesbro' W.)Marshall, Fred
Bentham, Dr. EthelGrundy, Thomas W.Mathers, George
Bevan, Aneurin (Ebbw Vale)Hall, F. (York, W. R., Normanton)Maxton, James
Bowen, J. W.Hall, G. H. (Merthyr Tydvil)Melville, Sir James
Bracken, B.Hamilton, Sir R. (Orkney & Zetland)Messer, Fred
Brockway, A. FennerHarbord, A.Middleton, G.
Brothers, M.Hardie, George D.Milner, Major J.
Brown, C. W. E. (Notts, Mansfield)Haslam, Henry C.Morris-Jones, Dr. J. H. (Denbigh)
Brown, Brig.-Gen. H. C. (Berks, Newb'y)Hayday, ArthurMort, D. L.
Buchan, JohnHayes, John HenryMoses, J. J. H.
Buchanan, G.Henderson, Arthur, junr. (Cardiff, S.)Muggeridge, H. T.
Butler, R. A.Herriotts, J.Muirhead, A. J.
Buxton, C. R. (Yorks, W. R. Elland)Hirst, G. H. (York W. R. Wentworth)Oldfield, J. R.
Buxton, Rt. Hon. Noel (Norfolk, N.)Hirst, W. (Bradford, South)Oman, Sir Charles William C.
Carter, W. (St. Pancras, S. W.)Hoffman, P. C.Palin, John Henry
Cautley, Sir Henry S.Hollins, A.Palmer, E. T.
Charleton, H. C.Hudson, James H. (Huddersfield)Parkinson, John Allen (Wigan)
Chater, DanielHunter, Dr. JosephPerry, S. F.
Church, Major A. G.Isaacs, GeorgePethick-Lawrence, F. W.
Clynes, Rt. Hon. John R.Jenkins, W. (Glamorgan, Neath)Phillips, Dr. Marion
Colman, N. C. D.John, William (Rhondda, West)Pole, Major D. G.
Daggar, GeorgeJowett, Rt. Hon. F. W.Potts, John S.
Dallas, GeorgeKennedy, ThomasQulbell, D. F. K.
Davies, Rhys John (Westhoughton)Kenworthy, Lt.-Com. Hon. Joseph M.Ramsay, T. B. Wilson
Denman, Hon. R. D.Kinley, J.Raynes, W. R.
Dickson, T.Knight, HolfordReynolds, Col. Sir James
Dugdale, Capt. T. L.Lathan, G.Richardson, R. (Houghton-le-Spring)
Dukes, C.Law, A. (Rossendale)Ritson, J.
Duncan, CharlesLawson, John JamesRomeril, H. G.
Ede, James ChuterLawther, W. (Barnard (astle)Rosbotham, D. S. T.
Edge, Sir WilliamLeach, W.Rowson, Guy
Edmunds, J. E.Lee, Frank (Derby, N. E.)Samuel, H. W. (Swansea, West)
Edwards, C. (Monmouth, Bedwellty)Lee, Jennie (Lanark, Northern)Sanders, W. S.
Edwards, E. (Morpeth)Lees, J.Sandham, E.
Egan, W. H.Lindley, Fred W.Sawyer, G. F.
Freeman, PeterLongbottom, A. W.Sexton, James
Fremantle, Lieut.-Colonel Francis E.Longden, F.Shakespeare, Geoffrey H.
Gardner, B. W. (West Ham, Upton)Lovat-Fraser, J. A.Sherwood, G. H.
Gardner, J. P. (Hammersmith, N.)Lowth, ThomasShield, George William
George, Major G. Lloyd (Pembroke)Lymington, ViscountShilfaker, J. F.
Shinwell, E.Strauss, G. R.Welsh, James C. (Coatbridge)
Short, Alfred (Wednesbury)Sutton, J. E.West, F. R.
Simmons, C. J.Taylor, W. B. (Norfolk, S. W.)Whiteley, Wilfrid (Birm., Ladywood)
Sitch, Charles H.Thurtle, ErnestWhiteley, William (Blaydon)
Smith, Alfred (Sunderland)Tillett, BenWilliams, David (Swansea, East)
Smith, Ben (Bermondsey, Rotherhithe)Tinker, John JosephWilliams, Dr. J. H. (Llanelly)
Smith, Frank (Nuneaton)Turton, Robert HughWilliams, T. (York, Don Valley)
Smith, Rennie (Penistone)Viant, S. P.Wilson, C. H. (Sheffield, Attercliffe)
Smith, Tom (Pontefract)Wallace, H. W.Wilson. R. J. (Jarrow)
Smith, W. R. (Norwich)Wallhead, Richard C.Winterton, G. E. (Leicester, Loughb'gh)
Snell, HarryWatkins, F. C.
Sorensen, R.Watts-Morgan, Lt.-Col. D. (Rhondda)TELLERS FOR THE AYES.—
Stamford, Thomas W.Wellock, WilfredSir J. Withers and Sir W. Greaves Lord.
NOES.
Beaumont, M. W.Macquisten, F. A.Savery, S. S.
Bourne, Captain Robert CroftMargesson, Captain H. D.Simms, Major-General J.
Davies, Dr. VernonMeller, R. J.Smith-Carington, Neville W.
Fermoy, LordMorris, Rhys HopkinsSouthby, Commander A. R. J.
Grace, JohnOliver, P. M. (Man., Blackley)Titchfield, Major the Marquess of
Hannon, Patrick Joseph HenryPeters, Dr. Sidney JohnWard, Lieut.-Col. Sir A. Lambert
Hennessy, Major Sir G. R. J.Peto, Sir Basil E. (Devon, Barnstaple)Warrender, Sir Victor
Herbert, Sir Dennis (Hertford)Ramsbotham, H.Wells, Sydney R.
Hills, Major Rt. Hon. John WallerRoberta, Sir Samuel (Ecclesall)Womersley, W. J.
Howard-Bury, Colonel C. K.Ross, Major Ronald D.
Leighton, Major B. E. P.Sandeman, Sir N. StewartTELLERS FOR THE NOES.—
Mr. C. Williams and Mr. Atkinson.

Photo of Mr Cyril Atkinson Mr Cyril Atkinson , Altrincham

I beg to move, in page 2, line 4, to leave out the word "the", and to insert instead thereof the word "any".

On looking at page 2 of the Bill hon. Members will see that this certificate may be granted, where it so appears to the certifying authority. The certifying authority is defined as covering the justices or the judge or the chairman of the court; but a doubt has arisen in my mind: supposing the justices have refused to give a certificate, is it open to a judge or a chairman to take a different view? It seems to me that if for the word "the" in the phrase where it so appears to the certifying authority, we substituted the word "any" it would be perfectly clear that even if one branch of the authority had declined to grant the certificate the other branch could.

Photo of Mr John Withers Mr John Withers , Cambridge University

The promoters of the Bill are prepared to accept the Amendment, subject to its approval by the Solicitor General.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

I would like to hear whether this Amendment is accepted by the Government. We have not yet had the agreement of the Solicitor-General signified. Beyond that I should like to know how it was that this mistake was not put right when the Bill was in Committee upstairs. Earlier in the afternoon we were assured that this Bill had been considered for months, and even for years, and yet my hon. and learned friend, whose mind is one of the clearest in this House, has just confessed that the wording of this passage left him in doubt. As a supporter of this Bill, in spite of what happened just now, which was most regrettable, I want to know how it was this mistake arose. There was no discussion on this point in Committee upstairs—[Interruption]. If the hon. Member who interrupts me can show me where it was discussed, I shall be glad, but I have gone through the report of the proceedings in Committee and I can see nothing about it. The hon. and learned Gentlemen on the Treasury Bench do not yet seem to have made up their minds as to accepting this Amendment. [Interruption.] If the hon. Member for Rotherhithe (Mr. B. Smith) wishes to make a speech, I hope he will do so. We have not had a speech from him for quite a long time. If he must interrupt me, I would prefer that he would get up and speak, because then I could hear clearly what he says and deal with it in due course. I do not wish to be led away by interruptions. That is most disagreeable to one, and F may have to appeal for the protection of the Chair to safeguard me against interruptions. They divert my mind from the object before me, which is to extract an answer from the Treasury Bench as to whether the Government will accept this Amend- ment. If the learned Gentlemen opposite accept it, well and good, and there is no need for their ally to interrupt me; but if they do not accept it, then the position is going to be very difficult.

Photo of Mr Alfred Short Mr Alfred Short , Wednesbury

We are quite willing to accept this Amendment. We think the wording of the Bill is quite sufficient for the purpose, but this is only a drafting Amendment, and we are quite willing to fall in with the wishes of the Committee.

Amendment agreed to.

Photo of Mr Cyril Atkinson Mr Cyril Atkinson , Altrincham

I beg to move, in page 2, line 8, after the word "murder," to insert the words: or of any offence punishable by penal servitude for five years or more. This Amendment deserves the serious consideration of the Committee. Hon. Members will observe the contrast between the case in paragraph (a) and the cases in paragraph (b). Paragraph (a) deals with murder, and nothing but murder. Under that paragraph anyone charged with murder is entitled to a defence certificate without more ado, but if he is charged with any other offence, then under paragraph (b) he is not entitled to a certificate as a right. The justices have a discretion in granting it. They can only grant it if they consider, having regard to all the circumstances of the case (including the nature of such defence, if any, as may have been set up), that it is desirable in the interests of justice that he should have legal aid in the preparation and conduct of his defence at the trial. If a man is charged with murder, he can ask for a certificate and gets it without more ado; but in the case of any other offence, however serious, he has to show that there are some special circumstances, and even then it is left to the discretion of the justices or the judge as to whether a certificate shall be granted. It seems to me that there are other serious offences which ought to be placed on the same level as murder. Take, for example, attempted murder. Why is it that in a charge for murder a prisoner is entitled to the defence certificate, but that if it is a charge of attempted murder, he is not entitled to that certificate as a right? My submission is that under this Measure the line is drawn in the wrong place, and there are many other offences which ought to be placed in the same class as murder. In my Amendment, I draw the line at any offence punishable by penal servitude for five years or more. The Committee may make the period ten years or fourteen years if they like, but I want to cover all offences of serious crime. I cannot for the life of me see why the crime of attempted murder should be placed in a different class to that of murder. Besides attempted murder there are often very serious cases of unlawfully wounding, and my submission is that a poor prisoner, in a charge of that kind, ought to have the same right to this privilege as in the case of murder. We ought to have some explanation as to why this distinction is drawn. Everybody desires that this Bill should go through to-day, but that does not mean that we should pass it in its present form when it can be amended very easily. These Amendments can be made quite simply and shortly, and, if hon. Members feel that the line which I suggest is not suitable, some other period might be more acceptable.

Photo of Mr George Knight Mr George Knight , Nottingham South

Surely, all those cases are covered by Paragraph (b) of Subsection (3).

Photo of Mr Cyril Atkinson Mr Cyril Atkinson , Altrincham

The difference is that under Paragraph (a) the prisoner has a right to have the defence certificate without having to prove certain things. Under Paragraph (b) the prisoner may be charged with attempted murder, but he will not be entitled to the defence certificate as a right, and the magistrate in such a case will have to have regard to all the circumstances. There is also the condition that the granting of the certificate is in the interests of justice. Even then there is the difference that under Paragraph (a) the certifying authority shall grant a defence certificate, but under Paragraph (b) it is provided that the same authority "may" grant a defence certificate. That is a point which we propose to deal with under a further Amendment. Paragraph (a) commences with the word "shall," and therefore the justices cannot say "No," but under Paragraph (b) the justices can say "No" under the conditions which are laid down in that paragraph.

The mere gravity of the case will not make any difference. It will not be enough to say, "This is a grave charge," because that does not give the right to grant the certificate, which can only be granted if the magistrates think it is desirable in the interests of justice. I think it should be open to the justices in certain cases to say "No," and, if they take that course, then there is no remedy, and the prisoner will have to wait until he comes before the Judge. But, in a case of real gravity, I do not think that the justices ought to have the right to say "No." As I have already stated, I do not desire to adhere strictly to the period of five years, and I am ready to accept 10 or 14 years, so long as very grave offences are put on the same level as murder, and so long as the poor prisoner has the right to get this certificate from the justices in regard to serious charges other than that of murder.

Photo of Mr Edward Marjoribanks Mr Edward Marjoribanks , Eastbourne

I am sorry to disagree with my hon. and learned Friend the Member for Altrincham (Mr. Atkinson), but there is a distinction which is perfectly obvious, and must be obvious to his mind as an experienced lawyer, between murder, and any other case to which the death penalty does not apply. That is the reason why the promoters of this Bill provided for such a distinction. This is the most that we have been able to obtain, and I think it would be very unwise to press for any further extension of this principle. As the Amendment is going to be an arbitrary one—my hon. and learned Friend says that he does not mind whether it is applicable to cases punishable by 5, 10 or 15 years' penal servitude as long as the more serious cases are included—it does not seem to me to be worth much, and, therefore, I oppose it. If my hon. and learned Friend had any constructive scheme, or any particular difficult classification of any species of crime which ought unconditionally to have this right to legal aid, I should be more convinced, but he has left the matter wholly in the air, and, therefore, I think we ought to be grateful to the Socialist Administration, who seem to be in an economical frame of mind, for having granted as much as they have.

Photo of Mr Walter Greaves-Lord Mr Walter Greaves-Lord , Lambeth Norwood

I hope this Amendment will not be accepted, although it seems, on the face of it, to be rather an attractive Amendment. It seems a little odd, perhaps, that the absolute right should be limited to cases of murder, and people may say that, if a case is so serious that a man may get five years' penal servitude for the offence, surely it is a case in which the right to have legal aid should be allowed. But very few people, unless they went into it carefully, would quite realise the extent to which an Amendment of this kind opens the floodgates. There is scarcely a class of offence to which it would not apply. Every case of larceny, all cases of false pretences, and a very large number of other cases, far too numerous to go into at the present time, would become cases in which, whether there was any defence or not, there would be an absolute right to legal aid. I have a very strong objection indeed to opening the floodgates so wide, and we must remember that under this Bill we are extending very considerably the cases in which legal aid can be granted.

One of the defects of the existing law is that legal aid cannot be granted unless the defence is disclosed upon the depositions. That is one of the difficulties with which we have to deal, but, so far from there being a tendency not to grant legal aid, the position has been that authorities throughout the country have been chafing under the present restrictions, and there is certainly no case for going so far as to take the discretion away from the authorities, because the authorities have always been anxious to exercise their discretion in proper cases wherever they were allowed to do so. We have by this Bill gone a very long way, because it will now be possible under the Bill to extend legal aid to a man even though he may plead guilty. Quite frankly, however, I do not want to go very much further in that direction, and for more than one reason. One very serious reason is that it would not be in the interests of the accused person.

I have mentioned before in the House a very regrettable practice in connection with cases which are committed for trial, namely, the practice of not disclosing the defence during the committal proceedings. If an Amendment of this kind were passed, giving an absolute right in all circumstances to legal aid when the case is brought before the committing magistrates, it would go still further in the direction of putting forward no inducement at all to disclose the defence. As matters stand at present, one of the things which the court of summary jurisdiction and the certifying authority have to do is to look at the circumstances of the case, including the nature of such defence, if any, as may have been set up. There is a distinct invitation to set up a defence, and it is all to the good that that should be so, because, in the first place, if there is no defence at all, or if the defence is a rotten one, it is perfectly proper that opportunity should be given to inquire into the defence which has been set up in the police court, between the police court proceedings and the trial. On the other hand, in the case of the man who really has a genuine defence, the sooner that defence is set up the better, and, the greater the inducement to set it up, the better for the man himself and the better is justice administered. I am all for doing nothing to take away the inducement, which will still exist if this Bill is passed in its present form, to set up the defence at the earliest possible moment.

Apart from all that, one must remember that it has seemed to those who administer criminal justice in this country, and to those who are constantly following the administration of criminal justice, and are very anxious indeed that all proper facilities should be given to an accused person to prepare his defence in a right and proper way, that this Bill goes to the limit of what at the moment can rightly be done; and there can be very little doubt that, so great is the feeling on this point, that the Bill might be jeopardised very seriously indeed if an Amendment of this kind were accepted.

I made an appeal to the House on the Second Reading not to overlay the Bill with Amendments which might cause difficulties in its passage. I certainly did not contemplate at the time that any Amendment so wide as this would ever be put down to the Bill, and I am quite certain that, if an Amendment of this description were accepted by the promoters, it would seriously endanger the passage of the Bill. I am also confident that, with the fuller liberty for the exercise of discretion which exists under Sub-section (3, b), and the inclination which everyone who has had anything to do at all with the administration of justice knows to exist, on the part of those who have to certify, to do so, in all proper cases, and the pleasure with which they see the move to get rid of the fetters which at present exist on their discretion, I should regard it as a very serious danger to the passage of the Bill if this Amendment were accepted. I hope that it will be withdrawn, and that we shall not encumber the Bill with a provision which will do no real good, but may do a great deal of harm in the administration of justice.

Photo of Mr Cyril Atkinson Mr Cyril Atkinson , Altrincham

I do not know if the hon. Member will accept the words "or attempted murder"?

Photo of Mr John Withers Mr John Withers , Cambridge University

May I say on behalf of the promoters that, when the Bill was originally brought in, we went as far as we could to include any benefit for prisoners. The matter was gone into with the Home Office and this, after a good deal of discussion, was the limit to which they were prepared to go. If they are prepared to accept any extension, naturally we should be only too delighted to receive it, but it is for them to say, and this is what they have said so far. If they stick to it, I support them. If they wish to go further, I accept with gratitude.

Photo of Mr James Melville Mr James Melville , Gateshead

It is impossible, in my view, to go further than has been done in this Bill. There is an obvious distinction between murder and any other ordinary crime. It is a capital offence and that marks it out as standing on a, different footing from every other kind of offence. The hon. and learned Gentleman who moved the Amendment himself conceded that, as it stood, it was really unsatisfactory. It is unsatisfactory, for one thing, because it would mean that in probably a majority of cases a person accused would rely upon this five years' punishable limit. I have looked through a list of such cases which would confer on an accused person a statutory right to be defended out of public funds. Such cases as arson, bigamy, burglary, practically all the carnal knowledge cases, larceny, would be cases which would confer upon the individual a statutory right to be defended at the public expense. That is not a position that one can regard as anything but alarming. I do not think it is desirable to go into the thing piecemeal. We have what I suggest is really a very workable distinction. We have, on the one hand, the crime of murder, which is a special crime in its nature, and on the other hand we have the proviso, "if it appears, having regard to all the circumstances of the case, that it is desirable in the interests of justice." I do not think it is possible to classify in advance what kind of cases should be distinguished except in the case of murder. I said earlier that I hoped we should succeed in turning out a Bill which would not inflict unnecessary cost upon local communities, and I hope the Committee will not accept this Amendment.

Photo of Mr John Grace Mr John Grace , Wirral

I find some difficulty in following the line of argument of my hon. and learned Friend the Member for Cambridge (Sir J. Withers). He says he actually tried to introduce into the Bill something of the nature of this Amendment, but apparently he has been brow beaten by somebody known as the Home Office. It really is an amazing confession to make on an important measure like this, which is intended to benefit a section of the community, that he should desire to have that change made in the law and that, when it is put before a set of bureaucrats, he should allow himself to be dictated to in the way he apparently has been. How can he possibly oppose the Amendment when he himself has tried to get the very matter through? Are we to be ruled by Government officials or by Parliament? We are raising a very great issue in the line the Debate is now taking. A very serious position is arising which I shall not allow to rest to-day.

I cannot understand the hon. and learned Gentleman who is just going out. He says in the first place that he objects to the Amendment because the person ought to put up his defence in the court below, in order that the Recorder or the Assize Judge may have the advantage of it, but he opposed my Amendment which was intended to give to that very same prisoner the opportunity of being properly represented in the very first instance. He says on the one hand it is right in the interest of the prisoner himself and of the public that he should declare his defence at the earliest possible moment, and an hour ago he voted against my Amendment. It is an attitude which is thoroughly inconsistent. He says on the one hand, some unfortunate man who is charged with manslaughter or some other serious offence has to go before the justices, depositions will be taken and there will be no opportunity on his part to question evidence which possibly ought not to be admitted, and there will be no opportunity of cross-examination by a man trained in the art, and yet that same man, without any legal help or advice, has, in order to satisfy my hon. and learned Friend, to disclose his whole case and possibly give the police and the Crown an opportunity of bringing other evidence and amending their own case and thereby—one never knows—producing a miscarriage of justice.

It is a very questionable thing whether the alternative that is offered by the Subsection is a right and proper one. It is to be the duty of the magistrate to grant a certificate and, on the other hand, if you take away the compulsion, you leave it to the discretion of the court. I have an Amendment later to delete the words "including the nature of such defence it any." I very strongly take the view that no man should be denied the right to legal aid simply because he has refused, from inexperience, to give his defence in the early stages. Yet Recorders who take the view of my hon. and learned Friend the Member for Norwood (Sir W. Greaves-Lord) will not give him legal aid because he has not put up his defence before the lower court. That is very wrong, because there are always two opinions. It may be that it would have been better for the man to disclose his defence in the first instance, but sometimes it is very much better not to. For that reason, if this or some similar Amendment is not accepted, you are going to drive people back to paragraph (b), which will leave it in the discretion of the magistrates or the judge or the Recorder to decide exactly what he will do.

There is a further point. My own experience is that magistrates, judges and Recorders under the present law are rather diffident about granting public money for free legal aid. As a rule, if you find a Recorder or a judge who will grant free legal aid, you can pretty well be sure that it is a cast-iron defence. One almost wonders that such a case should pass the grand jury. Very rarely does one find in real practice, where there is just a faint possibility of defending counsel, by some ingenious means, putting up a plausible defence, a defence that possibly the learned judge or the learned recorder has not discovered in looking at the depositions, that discretion being exercised in favour of these people. Where you have serious charges like charges of manslaughter, charges of rape, charges of robbery with violence, all these charges where the gravest possible consequences may result to the convicted person, it is unfair if the prisoner cannot afford to provide his own legal aid, that there should be any discretion. In those cases it should be a matter of right and not a matter of discretion on the part of the court. I sincerely hope that this Amendment, either in this form or in some limited form specifying a particular crime, will be given consideration and will be introduced into this Bill.

Photo of Mr George Knight Mr George Knight , Nottingham South

The argument to which we have just listened seems to have been mainly directed to a subsequent Amendment rather than to the Amendment which is now before the Committee and which seeks to include in addition to the capital offence, other offences within the five years' limit. I took no part in the negotiations concerning this Bill, but I imagine that the reason why Sub-section (3, a) has been inserted in this form is because it follows the modern, approved and recognised practice of discriminating in regard to capital offences. The Committee will remember that under the Criminal Appeal Act the man or woman convicted of murder, of right can go to the Court of Criminal Appeal. The discretion in regard to capital offences in this Bill is a very reasonable discretion, and I hope the Committee will accept it.

Mr. A. HENDERSON, Junr.:

Agreed!

Photo of Mr George Knight Mr George Knight , Nottingham South

The hon. Gentleman behind me, who, I understand, has had considerable experience in this matter, will, I hope, allow me to say a word in reply to the arguments addressed from the hon. Member on the other side.

Photo of Mr John Grace Mr John Grace , Wirral

Never mind him. You go on.

Photo of Mr George Knight Mr George Knight , Nottingham South

Reference has been made to difficulties which have occurred in the past owing to the fact that the accused had not disclosed his defence in the summary court. That is one of the most serious scandals connected with the Poor Prisoners' Defence Act, which has been in operation since 1903. Under the terms of that Statute, hundreds and thousands of poor prisoners who should have had legal aid have been deprived of it because of the reading of the words about disclosing the defence. It was adopted, I am afraid, rather under the guidance of the Home Office. As far back as 1904—I happen to have the judgment here as I surmised that it might come up—Lord Alverstone directed that the words in the old Statute enabled the justices to supply legal aid in a whole range of cases in which, under modern practice, it had been denied. I only make that passing comment owing to what he said. I am in agreement with the real social justice of this matter and after this explanation I will content myself by urging my hon. and learned Friend opposite to withdraw his Amendment.

Photo of Mr Dennis Herbert Mr Dennis Herbert , Watford

I hope that my hon. and learned Friend is not prepared to withdraw this Amendment, and I sincerely hope that the Committee will not accept it. I confess that I regard this Bill from a different point of view from that of some hon. Members opposite. I regard it as a Bill intended to prevent a miscarriage of justice and not as a Bill to grant free legal aid to the criminal classes generally. For that reason, I am opposed to any undue extension of the Bill. It seems to me that the Solicitor-General and other hon. Members who have referred to the case of murder as a capital offence, have failed to mention the real distinction in the case of murder, which ought to be made clear. There may be different points of view on the subject, but I agree that conviction for certain things other than murder may be at least as serious, possibly more serious, than a conviction for murder. I have been told that men who have been given very long sentences, or life sentences, criminals who have had the experience of hard labour, have stated, presumably they are the best judges, that they would prefer a capital sentence to a life sentence.

Photo of Mr Henry Cautley Mr Henry Cautley , East Grinstead

The evidence given before the Committee was to the contrary.

Photo of Mr Dennis Herbert Mr Dennis Herbert , Watford

My hon. and learned Friend tells me, and I must bow to what he says on the subject, that the evidence that was given before his Committee was contrary to what I have said.

Photo of Mr Henry Cautley Mr Henry Cautley , East Grinstead

It was not my Committee. The evidence given by the Government of the day was quite different from the statement of my hon. Friend.

Photo of Mr Dennis Herbert Mr Dennis Herbert , Watford

I have no doubt that my hon. and learned Friend is quite right. I have not read that evidence, but it does not alter my argument for the present purpose. It may be that what my hon. and learned Friend has said is the general opinion, but I have heard of men, hardened criminals, who have given the view that I have expressed. Let me come to what I consider to be the real distinction in a case of murder. To anyone who thinks about the matter, the distinction must be clearly obvious. I have described this Bill as one to prevent a miscarriage of justice. If a miscarriage of justice takes place in connection with any offence other than murder, it may be discovered, particularly if the unfortunate person who suffers has an active Member of Parliament, who draws the attention of the Home Office to the matter and generally makes himself troublesome in this House—[Interruption.] I would not venture to claim to have the knowledge of my hon. Friend the Member for Torquay (Mr. C. Williams) on that subject. In consequence of the interruptions which are being made by hon. Members who know how to annoy the Government Front Bench and by hon. Members who have read the evidence given before the Committee, which I have not read, it has taken me a little time to get what I want to say, and that is this, that the difference between murder and other offences is the nature of the penalty.

If you get a miscarriage of justice, there may be trouble made in this House, or in one way or another, and the matter may be put right. A man may have been sentenced to a long term of imprisonment, but if it turns out that there has been a miscarriage of justice, and it is discovered, it is put right by his being released, and if he has suffered very severely from long imprisonment he may be compensated; but if a man has been convicted of murder and he has suffered the capital penalty, you cannot compensate him by any monetary recompense. Surely, that is the difference. It is the nature of the penalty for the offence of murder which makes it impossible when once the capital sentence has been executed, to remedy a possible miscarriage of justice. Therefore, I hope that in this case the Committee will show that soft-heartedness in regard to poor persons who require legal aid, is not going to be soft-headedness at the same time, thereby spoiling a reasonable Bill.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

I should not have taken part in the discussion on this Amendment had it not been that my hon. and learned Friend, the Member for Watford (Sir D. Herbert) had said that I know how to make trouble for the Government.

Photo of Mr Dennis Herbert Mr Dennis Herbert , Watford

On a point of Order. May I ask for protection against being misdescribed by my hon. Friend who, I understand, has been corrected on the subject before? It is the custom in this House to describe members of the Bas as learned. I am not a member of the Bar, and I do not wish to be mistaken as belonging to a profession to which I have not yet succeeded in attaining. I hope that I shall not be misdescribed by my hon. Friend. I do not wish to be misunderstood. He may desire to say that I am perfectly learned, but it is a question of being learned in fact if not in name.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

I sincerely apologise if I have described my hon. Friend by the wrong term of "learned." I have never yet been able to make out precisely how the Bar fit themselves in regard to this matter, but if I have infringed any rule or made the slightest misdescription which has offended my hon. Friend I apologise.

Photo of Mr John Potts Mr John Potts , Barnsley

Get on with the business.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

That is what I am trying to do, but the trouble is that hon. Members will interrupt me. I am trying to apologise for having offended the feelings of a, great personal friend, a Member of this House for whom everyone has deep respect. He said that. I know how to trouble the Government Front, Bench. If he will think the matter over he will realise that my object is not necessarily to trouble the Front Bench.

2.0 p.m.

Photo of Reverend Herbert Dunnico Reverend Herbert Dunnico , Consett

The hon. Member is not now discussing the Amendment.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

It is usual, when a remark has been made about one bon. Member, to allow a short personal explanation and I think I am in order in saying that I may have given a mistaken impression. I will now deal with the Amendment. It is a direct endeavour to clarify the position. When we consider Clause 1 (3, a) it seems to me to be necessary to put in some further limitation. If hon. Members opposite are halfhearted or hard-hearted, we shall not be able to carry our Amendment. It is a matter of much regret to me and some of my bon. Friends that when we have a real chance of making this Bill more efficient, there is opposition. I would make one last appeal to the Front Bench opposite to accept the Amendment. It would clarify the Bill in many ways and would be valuable and helpful. I cannot see why hon. Members opposite should take the line that every Amendment that is put forward from these benches should be turned down. There is a brutality and roughness about their procedure to which I am not accustomed from hon. Members opposite, and I am sorry that they should take that line. The attitude of mind which suggests that we will not, that we cannot and that we shall not help in any way, is making it very difficult for many of us who would like to see improvements in the Bill. I hope that the Amendment will be accepted, because it would be better in the interests of the Bill.

Photo of Sir Basil Peto Sir Basil Peto , Barnstaple

Some of us came here to-day in the belief that we were going to pass a Bill for the legal defence of poor persons, and I heard with astonishment that the Government refuse to accept an Amendment which would be an improvement to the object of the Bill, namely, that a defence certificate shall be issued in certain limited cases. Under the Bill that assistance is given in the case of murder. The Amendment proposes that it shall also be mandatory that a defence certificate shall be issued in the case of any offence punishable by penal servitude for five years or more. If we are going to give legal defence to poor persons who are charged with grave indictable offences, surely we should make it certain that they will get the defence certificate in case of such a grave charge as one which would lay them open to the punishment of penal servitude for five years.

Photo of Mr James Lovat-Fraser Mr James Lovat-Fraser , Lichfield

Should I be in order in asking the hon. Baronet to say what offences are punishable by five years penal servitude?

Photo of Sir Basil Peto Sir Basil Peto , Barnstaple

The hon. Member might be in order, but it is for the Chair to say. I am not bound to give way for the hon. Member and I am not called upon to make my speech in accordance with the hon. Member's desire. The hon. Member knows quite well that, whether or not my hon. Friend the Member for Watford (Sir D. Herbert) is learned in the sense of the House, I am clearly not, for I do not belong to any branch of the legal profession. Consequently, I should be entitled to ask that question of the Solicitor-General if I needed guidance; but it seems to me as a layman taking part in the Debate that it is quite sufficient—

Photo of Mr James Lovat-Fraser Mr James Lovat-Fraser , Lichfield

On a point of Order. Is the matter which the hon. Member is now discussing relevant to the Amendment?

Photo of Mr Charles Williams Mr Charles Williams , Torquay

Is an hon. Member entitled to get up and infer that the Chair does not know its own business?

Photo of Reverend Herbert Dunnico Reverend Herbert Dunnico , Consett

I was following the hon. Member's speech and he was quite in order. It is quite open to any hon. Member to call the attention of the Chair to any speech which may appear to be irrelevant.

Photo of Sir Basil Peto Sir Basil Peto , Barnstaple

I do not wish to pursue the point of Order further. How any hon. Member could have claimed that a single word that I used before the interruption was not relevant to the Amendment, passes my understanding. Let me repeat, for the benefit of the hon. Member opposite, exactly what the Amendment proposes to do. It proposes to do one thing and one thing only.

Photo of Reverend Herbert Dunnico Reverend Herbert Dunnico , Consett

The hon. Member is not entitled to repeat himself or to repeat the arguments used by previous speakers.

Photo of Sir Basil Peto Sir Basil Peto , Barnstaple

I bow to your Ruling, but it is a little difficult, when hon. Members, apparently through inadvertence or inattention, have failed to follow a single word of what has been said and then raise frivolous points of Order, that the hon. Member in possession is not entitled to make clear what he is talking about and what an Amendment proposes. I rose only to put a point to the Under-Secretary for the Home Office, as the Solicitor-General is not present. There are those of us who take a merely general though real interest in the Bill, and desire to see it of real use to poor prisoners. It is extraordinarily difficult for us to understand how it can be possible that Government spokesmen should oppose an Amendment which seeks to make it mandatory that in such severe cases as offences punishable by penal servitude for five years or more, a prisoner should get a defence certificate and be entitled to legal aid. I can only hope that in other parts of the Bill the Government intend to make it really effective, though the action they are taking on this Amendment would suggest that they wish to limit the Bill as far as possible to the granting of legal defence in the fewest cases. My sympathies are entirely with the Amendment.

Photo of Commander Sir Archibald Southby Commander Sir Archibald Southby , Epsom

I have no desire to occupy much time. Up to date we have had considerable discussion, mostly carried on by hon. and learned Members of one or other branch of the legal profession, and it has seemed to me that as soon as they had exhausted their stock of information they have very much resented a lay member putting his point of view. I submit that there is another body of citizens which will have to administer this Bill when it becomes law—the magistrates. It is as a magistrate and a layman that I wish to put to the Committee a few observations on this particular point. It is not entirely a matter of legal argument. The hon. Member for Lichfield (Mr. Lovat-Fraser) asked my hon. friend the Member for Barnstaple (Sir B. Peto) for a list of indictable offences. He knows quite well that there is a very long list of offences punishable by five years' penal servitude. Magistrates sitting to deal with cases of burglary or bigamy would be much happier if they had a definite instruction that they were to provide legal aid for prisoners. I support the Amendment because I think that to confine legal aid simply to cases of murder is not the fairest way of dealing with the matter. Every one in this Committee is anxious that the Bill should be passed in the interest of poor prisoners. It is as a magistrate that I am anxious that the Amendment should be accepted.

Amendment negatived.

Photo of Mr Cyril Atkinson Mr Cyril Atkinson , Altrincham

I beg to move in page 2, line 9, to leave out the word "may" and to insert instead thereof the word "shall".

I hope I shall get more support for this Amendment than for the last. When we came here this morning we regarded this as a private Bill which we were to discuss on its merits. Apparently that is not so, and the position is dominated by the Home Office, who says "yes" or "no" on the question of expense without regard to merit. I hope that on this Amendment we shall have the assistance of the Home Office. In view of the rejection of the last Amendment this one becomes of great importance. Sub-section (3, b) applies to every offence other than murder. Even if, having regard to all the circumstances of the case, it is desirable in the interests of justice that the prisoner should have legal aid, the granting of it is merely discretionary upon the magistrates. My Amendment would have the result that if the magistrate or the judge or the chairman was really satisfied that the circumstances of the case made it desirable, in the interests of justice, that a defence certificate should be granted, it would be obligatory to do so. I see that the learned Solicitor-General indicates assent. I am, therefore, hoping that he will accept the Amendment. It is not giving the magistrates discretion in every case, or making it compulsory in every case, but it says that when the circumstances prove that in the interests of justice a certificate should be granted, the magistrate should be bound to say "yes" and to tell the prisoner "Take your certificate."

Photo of Mr Alfred Short Mr Alfred Short , Wednesbury

We have no objection to the Amendment.

Amendment agreed to.

The following Amendment stood upon the Paper in the name of Mr. ATKINSON:

In page 2, line 11, to leave out the word "the" and to insert instead thereof the word "that."

Photo of Mr Cyril Atkinson Mr Cyril Atkinson , Altrincham

I do not propose to move this Amendment. I do not think it necessary.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

I do think it necessary. [HON. MEMBERS: "Oh!"] Surely, if an Amendment is on the Paper any hon. Member has a right to move it.

Photo of Mr George Knight Mr George Knight , Nottingham South

Is the Committee to understand that the hon. Member in charge of this Amendment does not wish to move it? If so, can any discussion proceed upon it?

Photo of Reverend Herbert Dunnico Reverend Herbert Dunnico , Consett

I understand that the hon. and learned Member for Altrincham (Mr. Atkinson) does not wish to move.

Photo of Reverend Herbert Dunnico Reverend Herbert Dunnico , Consett

The hon. Member can move the Amendment.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

I beg move, in page 2, line 11, to leave out the word "the," and to insert instead thereof the word "that."

It has now been definitely laid down that the certifying authority shall grant a defence certificate in respect of any person committed for trial if it appears to the certifying authority that it is desirable in the interests of justice … that he should have legal aid. I think it would be much clearer if the words were "that certifying authority" which would make it perfectly plain that the certifying authority was that which is defined in an earlier part of the Clause. I do not think there is any particular objection on the part of the Government to this change but, if there is, I should like to hear an explanation of it.

Photo of Mr John Withers Mr John Withers , Cambridge University

I appeal to the hon. Member to withdraw this Amendment. "The certifying authority" is a statutory expression and is set out in Sub-section (2) of Clause 1 of the Bill, which provides that such justices judge or chairman are, in this section, referred to as the certifying authority.' As a matter of fact, I think we have made a slip in amending line 4 of this Clause by leaving out the word "the" and putting in the word "any," and I think that is a matter which will have to be put right on the Report stage. I am quite clear that this word "the" ought to stand.

Photo of Mr Henry Cautley Mr Henry Cautley , East Grinstead

I was about to point out what my hon. Friend has just explained to the Committee. I think a mistake has been made in connection with the previous Amendment to which he refers.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

If the Solicitor-General will reply to me, I will then see if I can withdraw this Amendment.

Photo of Mr James Melville Mr James Melville , Gateshead

My answer to the hon. Member must be the same as that which has just been given by the hon. Member for Cambridge University (Sir J. Withers). I think it better to refer to "the" certifying authority and not to "that" certifying authority. The reference to the earlier Amendment which we passed illustrates the difficulties which may arise from being too conciliatory in endeavouring to deal with what appear to -be rather unimportant Amendments. I think there is a good deal of force in what the hon. Member for Cambridge University and the hon. and learned Member for East Grinstead (Sir H. Cautley) have said as to the effect of that earlier Amendment, and I can assure the hon. Member that in my opinion it is much better to leave these words as they are.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

I am placed in an awkward position because my hon. Friends on this side tell me that they would like to have this Amendment withdrawn, and I should be reluctant to disoblige them, but they have qualified their remarks by intimating that there has been one most regrettable slip in another part of the Bill. I do not know who may be responsible for that, but I am disturbed at the thought that these slips should occur. However, in view of what has been said I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Photo of Mr John Grace Mr John Grace , Wirral

I beg to move, in page 2, line 13, to leave out from the word "case" to the word "that" in line 14.

These words, "including the nature of such defence if any as may have been set up," seem very undesirable words to introduce in this Clause, and they may have very dangerous consequences in the application of the Clause to practical affairs. This proposal raises the question: Is the practice of compelling prisoners to disclose their defence before the magistrates to be put into actual words in an Act of Parliament? The Subsection without these words would read quite clearly. It would provide that the certifying authority shall grant a defence certificate "if it appears to the certifying authority having regard to all the circumstances of the case that it is desirable." That is quite enough. It leaves it open to the committing justices or the assize Judge, or the recorder, or the chairman of quarter sessions, to review the whole circumstances of the case. If you are going to draw the attention of the recorder or the Judge to this one particular thing, you are going in every case pretty well to compel a prisoner charged with an indictable offence to make up some defence in the first instance.

I think it would be a most dangerous thing to adopt the attitude that people charged with grave offences, before they have really had time to consider their defence or to realise what the evidence for the prosecution is going to be, should have to stand in the dock and, at the outset of their case, prejudice themselves by asking questions of the witnesses called by the Crown, which they would never have done had they had an opportunity of reading the depositions and then reviewing the whole matter in the full light of the case for the Crown. If a man does that, and later comes before a recorder, who takes the view that the hon. and learned Member for Norwood (Sir W. Greaves-Lord) takes, he may then find himself prejudiced because of these words "including the nature of such defence, if any." The Recorder may say, "Why did you not set up your defence before the committing justices"?

I do not think there should be any compulsion on a prisoner to do that. It is often far too dangerous, and it would be wiser, in the interests of justice and of people who are charged, that the Clause should be passed without these words. I fail to understand the argument that a man must put up his defence before the committing justices. I think it is a wrong principle entirely, and I shall always oppose it. Every man should be free to bring forth his defence as and when he thinks right, and I do not think that men in the presence of juries should have their case prejudiced because, if they have a good defence, they have not disclosed it before the lower court.

Mr. A. HENDERSON, Junr.:

I wish to associate myself with what has been said by the hon. Member for Wirral (Mr. Grace). I would also point out that, if these words were left out, it would still be possible for the investigating magistrates to take into consideration, when they were determining whether or not legal aid should be granted, whether or not a defence had been preferred on behalf of the prisoner. My objection to the insertion of these words is that they would cause, in the minds of many magistrates, especially lay magistrates, the impression that they should take into consideration whether or not there had been a defence. In my comparatively short experience at the Bar I have come to the conclusion, rightly or wrongly, that in quite a number of cases it is perfectly proper on the part of an accused person to withhold his defence until the trial at the quarter sessions or assizes. The proceedings that take place at the magistrates' court are merely in the nature of an investigation, and the trial does not take place until it goes before a judge and jury; and if, in the nature of the case, he and, if you like, his legal advisers form the opinion that it is desirable in the interests of the prisoner that he should withhold his defence until the trial, I suggest that he is perfectly entitled to do so.

Photo of Mr Robert Bourne Mr Robert Bourne , Oxford

I want to ask the learned Solicitor-General what are the legal effects of these words. I rather agree with the last speaker that the effect of including them may be that in order to obtain the grant of a certificate, the defence must be disclosed. I am very much afraid that the effect of leaving the words in will be to compel the prisoner, if he wishes to take advantage of this Bill, to disclose his defence. If I am wrong, I shall not press the matter. I think it would help the Committee if we could have the opinion of the Solicitor-General, because this is a legal question, and if these words would compel the defence to be disclosed, I hope the promoters will agree to their deletion.

Photo of Mr James Lovat-Fraser Mr James Lovat-Fraser , Lichfield

With very great deference to my hon. Friend the Member for South Cardiff (Mr. A. Henderson, Junior), I should not, like it to go forth that his view was that of all those who sit on this side of the House.

Mr. A. HENDERSON, Junr.:

I was speaking for myself.

Photo of Mr James Lovat-Fraser Mr James Lovat-Fraser , Lichfield

I am glad my hon. Friend says that, because I should not like it to be believed that we agree with him on this point. As I read the Clause, there is no compulsion on a man to set up his defence, and great stress in considering the value of this Clause must be laid on the words "if any" in the sentence "including the nature of such defence, if any." I do not think we should encourage people to reserve their defence. Why should not an innocent man tell the truth right away, and give the opportunity for his story to be investigated? We ought not in this House to encourage the practice of reserving defences, because long experience at the Bar leads me to believe that when 'a man says he wants to reserve his defence, prejudices are aroused against him at once.

Photo of Mr Walter Greaves-Lord Mr Walter Greaves-Lord , Lambeth Norwood

If you take these words out of the Clause, you will put a very serious blemish upon the Bill. The hon. Member for South Cardiff (Mr. A. Henderson, Junr.) said there was no reason in the world why a man should be induced—I think he said that, in effect—to put forward his defence at the earliest possible moment.

Mr. A. HENDERSON, Junr.:

I never said so.

Photo of Mr Walter Greaves-Lord Mr Walter Greaves-Lord , Lambeth Norwood

I only said that I thought that was the inference from the hon. Gentleman's speech, and I think that he agrees with me that it is an inference. In the first place, one has to consider what are the preliminary proceedings and what is the duty of the man. It is quite true that two views have been held. There were at one time a number of people in this country who held the view that if any sort of a prima facie case was set up before a magistrate who was asked to commit, he must of necessity commit, and, undoubtedly, in Vile old days, there were some magistrates who took that view. So much did they take that view, that they stopped counsel before them from cross-examining witnesses, and said, "What is the use of doing that? It is quite obvious that there is a prima facie case here, and I shall commit for trial." I am glad to say that that school of magistrate has disappeared, and it is a very good thing for the administration of justice that it has disappeared. The prevailing rule to-day, and the rule which is acted upon, is that a magistrate has no right to commit a man for trial if, after considering the evidence for the prosecution, plus the evidence which is given for the defence, he has formed the conclusion that no jury would convict. Obviously, in coming to that conclusion, he takes account of the cross-examination which is put forward by the defence, and any evidence which is given by the defence.

Therefore, the result of having a good and sound defence put forward at the police court is very often to prevent a case being committed for trial. In those circumstances, why should we do something which would perpetuate the old and horrible system of solicitors and counsel who are advising prisoners time after time, "Oh, reserve your defence. It will be much better to put it up either at quarter sessions or assizes." It is a bad principle. It has been condemned, as far as I know in my own experience, which now, I am sorry to say, goes back over 30 years, by everybody who has bad any long experience of dealing with criminal cases. It operates against the administration of justice. After all, it may be that it sometimes helps the man who is guilty to get off. It may do that, but that is surely not the purpose for which we administer justice, and one of the real evils about it is that, inasmuch as that is one of the purposes for which it may be used, it attaches suspicion at once to the man who reserves his defence, and it attaches suspicion to him particularly where be is advised by a solicitor. The solicitor has heard the man's story and thinks it advisable that it should not be inquired into too much, and one is very often tempted to take a suspicious view because that has been the state of affairs. Of course, you do not take that line, and you do not allow yourselves to be deflected by it when it is clear upon the depositions that the jury ought to take the view that the defence is a proper defence. All the same time, in cases which are on the border line there can be no doubt that it has a very serious effect, and that serious effect is detrimental to the prisoner.

I feel so much about this that I am going to repeat what I have already said on other matters, because it is strictly germane to this Clause. Nothing can be worse than a state of legislation which tends to induce accused persons to withhold their defence and their evidence from the court. After all, we are not concerned to help the man who has no defence. We are not concerned to assist the man whose only hope is to impose upon and deceive a court of justice. If, therefore, a bogus defence is put forward, there can be no injustice in that bogus defence being riddled before the case goes for trial, and evidence is prepared to show that it is a bogus defence. On the other hand, if the defence is a real and true defence, everyone who is accustomed to the administration of justice knows that from the moment that defence is put forward inquiries are made, and the opportunity for inquiry arises. The police of this country do their best in regard to inquiries, and if the defence is a genuine defence and is capable of being proved upon inquiry, the only result of it being put forward at the police court is that when the case comes for trial, it is shown to the court that the defence is a genuine defence, and one to which effect should be given.

It is all in favour of the accused person that that defence should be put forward, and, as my hon. Friend the Member for Lichfield (Mr. Lovat-Fraser) has pointed out, there are no words of compulsion. We have got rid, or shall get rid, of the old vicious system by which, as things are at present, you have no right to grant legal aid unless the defence is disclosed. We are getting rid of that altogether by the words "if any" in this Clause. But having done that, do let us retain some words in the Statute which will induce defences to be put forward, so that the administration of justice may be very much sounder than at present. I remember the Second Reading Debate on this Bill. An hon. Member—I think it was the hon. Member for Flint (Mr. Llewellyn-Jones—put forward a wonderful illustration of the case of a man who was not represented before a court of summary jurisdiction. He pointed out that the man had a defence, but did not put it forward. He put it forward for the first time at either quarter sessions or assizes. The result was that it was put on one side. It was dealt with as something incapable of examination, and the man was convicted; whereas afterwards, upon inquiry, it was found out that the defence was a perfectly genuine defence. The hon. Member's whole support of this Bill was based upon the fact that this Bill would induce defences to be put forward in the police court, and if there had been really an inducement in those days, that particular miscarriage would not have happened.

That is the experience of a good many who have had something to do with the administration of the criminal law. I venture to think that the combined experience of all those who have dealt with matters of this kind is that it would be a fatal thing if anything were done to lead people to believe that it was advisable to put forward a defence in the police court. Because I think that these words will induce people who appear before courts of justice to put their defence forward at the earliest possible moment, I hope that these words will be retained in the Bill, and that the Amendment will be rejected.

Photo of Mr John Withers Mr John Withers , Cambridge University

There seems to be a bona fide difference of opinion on this matter, and the promoters will leave the matter to the decision of the Solicitor-General.

Photo of Mr Henry Cautley Mr Henry Cautley , East Grinstead

If the words were left out, a great deal of further discretion would be given to justices in giving legal aid than if they were included. They add a further consideration to be taken into account by the justices, and that, in some cases, at all events, is the way cases are presented in court. I regard the words as in favour of the accused person, and they will lead to legal aid being given in more cases if they are included than if they are left out. I cannot see why there should be not expressed in the wording of this Clause that there is no obligation of any sort or kind for the accused person to put forward his defence if he does not so wish, but having regard to what I have already stated, that in my opinion there may be and certainly will be cases which will not be provided for if these words are left out, in the interest of all accused persons, I shall strongly urge the Solicitor-General to keep the Bill as it is.

Photo of Mr Stuart Bevan Mr Stuart Bevan , Holborn

I support this Amendment. It appears to me that it is not a question as to whether in principle it is in the interest of justice or the prisoner that the defence should be reserved. What we have to consider here is the case of the innocent prisoner confronted with the problem whether to put forward his defence or to reserve it, and, if he puts forward his defence, how he is to do it. If he elects to put it forward, in many cases, innocent though he may be, he may well prejudice his defence when he comes to be tried on the charge upon which he is committed for trial. One of the difficulties in the Act of 1903 was the requirement imposed upon a prisoner that a defence should be disclosed, and I understand that the promoters of this Bill were actuated in drafting the Bill by the feeling that the provision as to disclosing the defence—compliance with which was necessary for legal aid to be granted—was a defect. I am thinking, not of our stipendiary magistrates, but of benches of lay magistrates, who for many years past have been considering the question of granting legal aid under the Act of 1903, where the disclosure of the defence was essential.

The words to which the Amendment relates seem to me to be surplusage, because it must be admitted that the wide provision "all the circumstances of the case" include, among 101 other matters, the nature of the defence, if any, which is set up. Why try to bring back into this Bill the words which, in the opinion of so many of us, constituted a defect in the Act of 1903? I agree that no stipendiary magistrate would be affected in his view in the least by seeing the familiar words incorporated in the context in which they are to be found in Sub-section 3 (b), but I am very apprehensive that benches of lay magistrates, seeing these words put there, may be led to take the view that no Act of Parliament can possibly contain words of surplusage, and words that do not mean anything, and that they were put there with the express purpose of perpetuating to some extent the requirements of the Act of 1903.

Photo of Mr James Melville Mr James Melville , Gateshead

I do not know that I would have intervened in the Debate on this Amendment had I not been so generously told by the hon. Member for Cambridge University (Sir J. Withers) that the view which the promoters would take would depend on the decision which I gave. This is a private Member's day, and we are considering a private Member's Bill, and the opinions which I express are expressed in the exercise of the best of my judgment on the material before me. I am also invited by the hon. and gallant Member for Oxford (Captain Bourne) to express an opinion as to the effect of the retention of these words and of their excision. This Clause as it stands really does nothing by way of addition to "all the circumstances of the case." Obviously, "all the circumstances of the case" will include, whether we say so or not, the nature of the defence, if any, which has been put up.

It is quite clear, however, that there is nothing which renders it a condition precedent to the grant of legal aid that the nature of the defence should be set up. It is not a condition precedent at all. I am apprehensive, just as my hon. and learned Friend who preceded me is, that some benches of magistrates might think, if you include these words, it was meant to be a condition precedent. I am, on the other hand, more apprehensive that if you cut these words out, there will be many more benches of magistrates who will say, "Parliament in its wisdom decided to excise these words when the matter which was under discussion in the House of Commons". I feel that it is a matter which a bench of magistrates ought to take into consideration when they are making a grant out of public money, but how are they to do it in many cases, how are they to exercise a wise judgment upon "all the circumstances of the case; if half the circumstances of the case are concealed from them by the defence? I do not see how in many cases they could exercise a wise judgment. Suppose that the defence turned out to be an utterly flimsy, foolish and obviously unsubstantial defence, something that was obviously false, something in which they had no trust at all, would hon. Members say that those being some of the circumstances of the case, it should be part of the exercise of the judicial functions of the magistrate that he should say, "Well, I am going to order the allocation of a certain amount of public funds in order to bolster up what is obviously a totally unsubstantiated case."

Therefore, it seems to me—I only put it before the Committee because my view was asked, and I do not profess to be very hot one way or the other—that it is most desirable, where there is a real defence, that the defence should be encouraged to put it forward at the earliest possible moment. After all, the unsubstantiated defence, the defence which has an element of perjury and fake is the defence that in practice is reserved for the trial, because then a defence can be set up which there is no possible means of testing. I do not think that the inclusion of these words really alters the earlier words "all the circumstances of the case". But on the whole I think it is wise to retain them, not as an element of compulsion in any way, but as an indication that it is and remains one of the circumstances which has to be taken into consideration by the Court in making up its mind whether there shall be a defence conducted with the public money.

Photo of Mr Dennis Herbert Mr Dennis Herbert , Watford

The Committee would like to know exactly where we stand. The hon. Member in charge of the Bill has intimated, apparently, that he has no particular mind one way or the other on the subject and has suggested that it is to be left to the Government Front Bench. The spokesman of the Government Front Bench appears to have no more fixed idea on the subject than my hon. Friend the Member for Cambridge University (Sir J. Withers) until, having talked about it for ten minutes, he decided to come down very gently and gingerly on what I think is the wrong side of the fence. That being so, I hope we shall have some reconsideration on the part of my hon. Friend the Member for Cambridge University, and that he will meet us by accepting the Amendment. I have very little to say about it, because what I did want to say has been said more effectively by my hon. and learned Friend. Surely, it is a matter on which all lawyers must be agreed, whether learned or not, whether Law Officers or not, that you cannot have any- thing more inclusive than the words "in all the circumstances." You can have something much less inclusive "in all the circumstances, including some particular one." Why is one circumstance to be mentioned as included unless it is that more special attention is to be given to that than to any other? There is no doubt that the Committee had an immense amount of evidence before them to show many cases in which an unfortunate poor prisoner suffered by reason of having put up a defence which was ill-advised, due perhaps to his own ignorance or possibly to the incapacity or comparative incapacity of his legal advisers at that moment. There are words which, if I may use a slang expression, have be come "blown upon as a result of their past history. We want to get rid of them altogether. We cannot have anything wider than "all the circumstances," and I hope my hon. Friend in charge of the Bill will agree to accept the Amendment.

3.0 p.m.

Photo of Commander Sir Archibald Southby Commander Sir Archibald Southby , Epsom

I cannot help thinking that the Committee must feel, after listening to the Solicitor-General, like people felt when in the past they listened to the Delphic Oracle, because, as a layman, I am still not sure what his view is although it may be that he has come down on one side gingerly as my hon. Friend said. The Committee should realise that, the only circumstances which the magistrates should take into consideration is the nature of the case against the accused person. It is not in the interest of the accused person that it should be incumbent upon the magistrates to know what his defence is going to be and what line that defence is going to take. It seems to me that the inclusion of these words would operate in the minds of the ordinary bench of magistrates in a way that would make them consider that they would have to know the defence and take into consideration the nature of the defence before they could grant a certificate giving the prisoner a free defence.

The Solicitor-General said that, if these words were cut out, the bench of magistrates would wonder why Parliament had done it. I venture to suggest that no bench of magistrate's would ever know they had been cut out because they would never know that they had been put in. It is in the interests of the prisoner that his defence to the charge should, as a rule, be opened before the tribunal which is going to try the case, and not before some lower tribunal which may discuss the case, because after that investigation it may be that it would not have been in his interests to have had discussed the line he was going to take. It has been said that in many cases the disclosure of the defence has prevented a committal. As a magistrate I say that those cases are very few indeed. In most cases it would have been far better for the prisoner not to have disclosed his defence until he got to the court where he was to be tried. Therefore, I hope the promoters of the Bill will pluck up their courage more firmly than the Solicitor-General has plucked up his and

definitely say that they will remove these words out of the Clause because these words will not help the prisoners whom it is the object of this Bill to help.

Photo of Mr John Grace Mr John Grace , Wirral

I want to ask the Solicitor-General one question. Does he agree that, if these words remain in this Clause, the effect will be that any poor man who refuses to put up a defence before the committing magistrates will have no chance of getting legal aid?

Question put, "That the words proposed to be left out stand part of the Clause."

The Committee divided: Ayes, 149; Noes, 67.

Division No. 270.]AYES.[3.3 p.m.
Adamson, W. M. (Staff., Cannock)Hoffman, P. C.Romeril, H. G.
Arnott, JohnHollins, A.Rosbotham, D. S. T.
Baker, John (Wolverhampton, Bilston)Hudson, James H. (Huddersfield)Rowson, Guy
Barnes, Alfred JohnHurst, Sir Gerald B.Salter, Dr. Alfred
Batey, JosephIsaacs, GeorgeSanders, W. S.
Bentham, Dr. EthelJohn, William (Rhondda, West)Sandham, E.
Bevan, Aneurin (Ebbw Vale)Jowett, Rt. Hon. F. W.Sawyer, G. F.
Bowen, J. W.Kennedy, ThomasSexton, James
Bowerman, Rt. Hon. Charles W.Kinley, J.Sherwood, G. H.
Broad, Francis AlfredKnight, HolfordShield, George William
Brockway, A. FennerLawson, John JamesShillaker, J. F.
Brown, C. W. E. (Notts. Mansffeld)Lawther, W. (Barnard Castle)Shinwell, E.
Buchanan, G.Leach, W.Short, Alfred (Wednesbury)
Buxton, C. R. (Yorks, W. R. Elland)Lee, Jennie (Lanark, Northern)Simmons, C. J.
Cameron, A. G.Lindley, Fred W.Sitch, Charles H.
Carter, W. (St. Pancras, S. W.)Longden, F.Smith, Alfred (Sunderland)
Chater, DanielLovat-Fraser, J. A.Smith, Ben (Bermondsey, Rotherhithe)
Clynes, Rt. Hon. John R.Lowth, ThomasSmith, Frank (Nuneaton)
Cocks, Frederick SeymourLunn, WilliamSmith, Rennie (Penistone)
Daggar, GeorgeMcElwee, A.Smith, Tom (Pontefract)
Dallas, GeorgeMcEntee, V. L.Smith, W. R. (Norwich)
Dalton, HughMcShane, John JamesSnell, Harry
Denman, Hon. R. D.March, S.Sorensen, R.
Dickson, T.Markham, S. F.Stamford, Thomas W.
Dudgeon, Major C. R.Marley, J.Strauss, G. R.
Dukes, C.Marshall, FredSutton, J. E.
Duncan, CharlesMathers, GeorgeThomas, Rt. Hon. J. H. (Derby)
Ede, James ChuterMaxton, JamesThurtle, Ernest
Edge, Sir WilliamMelville, Sir JamesTinker, John Joseph
Edmunds, J. E.Messer, FredTurton, Robert Hugh
Edwards, C. (Monmouth, Bedwellty)Middleton, G.Viant, S. P.
Edwards, E. (Morpeth)Mills, J. E.Walker, J.
Egan, W. H.Monsell, Eyres, Com. Rt. Hon. Sir B.Wallace, Capt. D. E. (Hornsey)
Freeman, PeterMontague, FrederickWallace, H. W.
Gardner, B. W. (West Ham, Upton)Morgan, Dr. H. B.Wallhead, Richard C.
Gardner, J. P. (Hammersmith, N.)Mort, D. L.Watkins, F. C.
Gibbins, JosephMoses, J. J. H.Watts-Morgan, Lt.-Col. D. (Rhondda)
Gibson, H. M. (Lancs, Mossley)Muggeridge, H. T.Whiteley, Wilfrid (Birm., Ladywood)
Gillett, George M.Naylor, T. E.Williams, David (Swansea, East)
Gossling, A. G.Newman, Sir R. H. S. D. L. (Exeter)Williams, Dr. J. H. (Llanelly)
Grenfell, D. R. (Glamorgan)Oldfield, J. R.Williams. T. (York, Don Valley)
Griffiths, T. (Monmouth, Pontypool)O'Neill, Sir H.Wilson, R. J. (Jarrow)
Grundy, Thomas W.Palln, John Henry.Winterton, G. E. (Leicester, Loughb'gh)
Hall, F. (York, W. R., Normanton)Parkinson, John Allen (Wigan)Wise, E. F.
Hall, G. H. (Merthyr Tydvil)Perry, S. F.Withers, Sir John James
Hall, Capt. W. P. (Portsmouth, C.)Phillips, Dr. MarionWright, W. (Rutherglen)
Hardie, George D.Pole, Major D. G.Young, R. S. (Islington, North)
Hayday, ArthurPotts, John S.
Hayes, John HenryRaynes, W. R.TELLERS FOR THE AYES.—
Hirst, G. H. (York W. R. Wentworth)Richardson, R. (Houghton-le-Spring)Sir W. Greaves-Lord and Sir Henry Cautley.
Hint, W. (Bradford, South)Ritson, J.
NOES.
Albery, Irving JamesHenderson, W. W. (Middx., Enfield)Rodd, Rt. Hon. Sir James Rennell
Aske, Sir RobertHennessy, Major Sir G. R. J.Russell, Alexander West (Tynemouth)
Atkinson, C.Herbert, Sir Dennis (Hertford)Samuel, A. M. (Surrey, Farnham)
Balfour, George (Hampstead)Hudson, Capt. A. U. M. (Hackney, N.)Samuel, H. W. (Swansea, West)
Balniel, LordHunter, Dr. JosephSandeman, Sir N. Stewart
Benson, G.Lathan, G.Shakespeare, Geoffrey H.
Bevan, S. J. (Holborn)Lees, J.Simms, Major-General J.
Bourne, Captain Robert CroftMacpherson, Rt. Hon. James I.Smith-Carington, Neville W.
Bracken, B.Macquisten, F. A.Taylor, W. B. (Norfolk, S. W.)
Charleton, H. C.Margesson, Captain H. D.Titchfield, Major the Marquess of
Cove, William G.Marjoribanks, E. C.Ward, Lieut.-Col. Sir A. Lambert
Davies, Dr. VernonMeller, R. J.Wardlaw-Milne, J. S.
Galbraith, J. F. W.Morris, Rhys HopkinsWayland, Sir William A.
George, Major G. Lloyd (Pembroke)Muirhead, A. J.White, H. G.
Glassey, A. E.Nicholson, Col. Rt. Hn. W. G. (Ptrsf'ld)Whiteley, William (Blaydon)
Gower, Sir RobertOliver, P. M. (Man., Blackley)Williams, Charles (Devon, Torquay)
Grattan-Doyle, Sir N.Owen, H. F. (Hereford)Windsor-Clive, Lieut.-Colonel George
Gray, MilnerPalmer, E. T.Wolmer, Rt. Hon. Viscount
Griffith, F. Kingsley (Middlesbro' W.)Peters, Dr. Sidney JohnWomersley, W. J.
Hall, Lieut.-Col. Sir F. (Dulwich)Pethick-Lawrence. F. W.Wood, Major McKenzie (Band)
Harris, Percy A.Ramsay, T. B. WilsonYoung, Rt. Hon. Sir Hilton
Haycock, A. W.Ramsbotham, H.
Henderson, Capt. R. R.(Oxf'd, Henley)Reynolds, Col. Sir JamesTELLERS FOR THE NOES.—
Commander Southby and Mr. Grace.

Question, "That the Clause be read a Second time," put, and agreed to.