Clause 2 (Appeal from Special Commission Court to Court of Criminal Appeal). MR. DILLON said, they had to meet again at 2 o'clock to-day, therefore he thought it was time they should adjourn. He would move that the Chairman report Progress, and ask leave to sit again. the fatigue of the opposition-which was not a very grateful task-fell upon that few. It would be particularly hard to keep them up very late, as they were kept up on Thursday and Friday, seeing that they had to meet again at 2. The interval between 7 and 9 o'clock on the day of a Morning Sitting was no advantage to the Irish Members, although, no doubt, it might be to right hon. Gentlemen opposite, particularly the Prime Minister. He hoped the right hon. and learned Gentleman would see his way to allowing hon. Members to get to bed half-an-hour earlier than he had intended. MR. GLADSTONE said, that no doubt some consideration was due to hon. Members opposite. Of late the House had followed the practice of meeting on Tuesdays at 2 o'clock; but he had no doubt, if it were felt that that hour was Motion made, and Question proposed, inconvenient to hon. Members, it could "That the Chairman do report Probe arranged to meet at 4 o'clock. He gress, and ask leave to sit again."(Mr. Dillon.) SIR WILLIAM HARCOURT said, that if the hon. Member would glance at the Paper, he would find that there were really no substantial Amendments to Clauses 2 and 3. Half-an-hour, he thought, would dispose of them; therefore, he hoped the Committee would be allowed to proceed. MR. T. P. O'CONNOR said, he hoped the Government would not resist the proposal of his hon. Friend. The Committee had been sitting since 5 o'clock, and had closely applied itself to the consideration of the Amendments brought before it. It had not wandered away from the questions at issue. trusted, in the meantime, however, that the proposal of his right hon. and learned Friend (Sir William Harcourt) would be acceded to, which amounted to this-that they should go on with the Committee until they came to some serious point of difference in the Bill. His right hon. and learned Friend's belief, and his (Mr. Gladstone's) own belief, was that there was no serious point of difference in the 2nd or 3rd clauses. When they had disposed of Clauses 2 and 3, they would arrive at the important provision about intimidation; and he should think it would be of great advantage to hon. Members to know that when they met to-morrow they would at once commence the consideration of that material provision. SIR WILLIAM HARCOURT said, MR. PARNELL said, it would be very that on Friday night they had not ad- much to the convenience of the Irish journed until half-past 1. He only Members if the Business of the House asked for about half-an-hour, believing to-morrow could be taken at 4 instead that Clauses 2 and 3 could be disposed of 2 o'clock. They did not wish to inof in that time. If hon. Members would terfere with the convenience of Her Malook at the Amendments to those clauses jesty's Ministers; but it must be adthey would see that they were not immitted that it was a great drag upon portant. MR. PARNELL said, he hoped the right hon. and learned Gentleman would not be too hard on the Committee. It must be remembered that he was taking the Bill every day; that it would come on at the Morning Sitting to-day; that the hon. Members who opposed the measure were few in number, and that all the opponents of the Bill to have to come down to the House at 2 o'clock after the present Sitting and the other late Sittings they had had. MR. GLADSTONE said, that, after what had fallen from the hon. Member, who, no doubt, spoke on behalf of a body of Gentlemen who had a considerable share of the labours of the House Motion, by leave, withdrawn. at the present time cast upon their | vailed in the House, and which always shoulders, so far as he (Mr. Gladstone) did go on at that hour of the night was concerned, he should be willing to (12.35 A.M.). He had heard one point, accede to the request that they should however, and that was that the Irish meet to-morrow at the usual hour-4 | Judges would be so totally inefficient o'clock. and so prejudiced that they would give heavier sentences if there was a right of appeal-knowing that they would be reviewed by the Court above-than they would give if there was no right of appeal. He had heard a great deal said by the Irish Members about the Irish Judges; but he had never heard anything so strong as that. He was very glad the Government did not intend to give way, and would not shut out a prisoner's right of appeal in an ordinary case, because he felt persuaded that that right would be very important in a considerable number of instances. If any hon. Member could for a moment imagine himself in the position of having received 20 years' penal servitude, he would ask him whether he would not consider it hard that he should be shut out from the right of appeal to five Judges, when he had been, in the first instance, deprived of the safeguard of trial by jury? MR. GREGORY said, he had an Amendment to propose to confine the appeal to capital offences. He felt that this Amendment would supply a great defect in the Bill, for the proposed tribunal would be a very strong one, and, in his opinion, if there were no right of appeal in ordinary cases, would be quite as satisfactory as any trial by jury could be. If, however, there was a right of appeal in ordinary cases, there would be a danger that the Judges might be hasty, and in some measure be guided by their own prejudices, knowing that their decisions would be reviewed in the Court of Appeal. He did not see why, in the case of aggravated crime in Ireland, they should give a right of appeal, which was quite contrary to the law as it had hitherto been in force in the Three Kingdoms. There was practically no appeal in criminal cases at present. He was not sure that the clause as it stood would operate altogether in favour of a prisoner, because if the decision of the first Court was confirmed by the Court of Appeal, it would be very difficult for the Home Secretary to exercise the Prerogative of the Crown, however desirable it might be to do so. He begged to move his Amendment, the effect of which would be to take all punishments but capital punishment out of the right of appeal. Amendment proposed, in page 2, line 16, after the first word " Act," insert "of any capital offence."—(Mr. Gregory.) Question proposed, "That those words be there inserted." SIR WILLIAM HARCOURT said, the Government had made this proposal after careful consideration. They thought it desirable to give prisoners the safeguard of a right of appeal in all cases, and they could not consent to such a material alteration in the clause as that proposed. COLONEL NOLAN said, he had not heard much of the speech of the hon. Member for East Sussex (Mr. Gregory), owing to the conversation which pre MR. GRANTHAM said, they should. not lose sight of the necessity of expediting appeals. If they had appeals from the decisions of the three Judges in Ireland, no doubt, from the experience they had in England of appellate work, many months would elapse before any single case was brought to a conclusion. Under the circumstances, he thought it desirable that if there was to be a right of appeal in every case, some clauses should be inserted in the measure for expediting the ordinary course of appeal, so as to benefit the prisoner, by letting him know as soon as possible whether the sentence on him was to be carried out or not, and, what was of as much importance, so as to insure the speedy punishment of crime; otherwise it would be considered that crimes could be committed with impunity. Question put, and negatived. MR. PLUNKET said, that, in the absence of his right hon. and learned Colleague (Mr. Gibson), he wished to move certain Amendments to limit the power of appealing from the Special Criminal Court to the Court of Criminal Appeal to convictions, and to strike out the power of appeal as regarded sen tences. His reasons for bringing forward the Amendments were, in the first place, that to give an appeal against a sentence was an entire innovation in the law of the Three Kingdoms. He did not know any instance in which a sentence was subject to appeal; and, certainly, it seemed to him that where the Judges were dealing with these grave cases, it would have a most injurious effect if their sentences were subject to appeal and review by another Court. He hoped the Committee would accept the three Amendments down in his right hon. and learned Friend's name, which were consequent one on the other, and which, if accepted, would make the clause read thus "Any person convicted by a Special Commission Court under this Act may, subject to the provisions of this Act, appeal against the conviction to the Court of Criminal Appeal hereinafter mentioned," &c. Amendment proposed, in page 2, line 17, leave out "either."-(Mr. Plunket.) Question proposed, "That either' stand part of the Clause." SIR WILLIAM HARCOURT said, there were two reasons why the Government could not agree to this Amendment. If the right hon. and learned Gentleman would look at the Bill he would see that the Appeal Court could hear new facts and take fresh evidence, and it was plain that that fresh evidence might very materially modify the sentence. Take, for instance, a case of aggravated assault. It might happen that when the case went up to the Court of Appeal evidence of great provocation might be tendered which was not offered at the original trial; and that would very largely diminish the sentence that ought to be pronounced. It was plain, then, that as the Court could hear new facts, it might have a new condition of things to deal with. It was necessary that the word "sentence" should be retained in the clause; nor was it at all disparaging to the Judges, who were Judges both of law and fact, that their sentences should be reviewed. When they dealt with the decision of an Equity Judge on appeal they dealt with his decision as to amount, because he was the Judge not only of questions of law, but of questions of fact. This would, he thought, dispose of the Amendments down in the name of the Colleague of Mr. Plunket the right hon. and learned Gentleman, even the one which referred to new trials. A new trial would be inappropriate. Who were they to send a case down to to be re-tried; to the three Judges who tried it before? Clearly not, because ordinarily when there was a new trial there was a new jury; but here they could not depend on that. The new trial, in point of fact, was the case before the Court of Appeal. The Court of Appeal would hear all the facts which the Court below heard, and as many additional facts as might be brought before it. It would be a saving of time that the Court of Appeal should finally give the sentence that, in their opinion, the Court below ought to have pronounced. MR. GRANTHAM said, that the argument the right hon. and learned Gentleman had brought forward with regard to a case of aggravated assault was hardly applicable. If there was evidence to warrant an alteration of the sentence, that evidence ought to have been given by the defence in the original trial; and it was scarcely reasonable to suggest that a prisoner, who had only committed his offence, whatever it was, in self-defence, or in consequence of an aggravated assault upon him, should allow himself to be convicted by the magistrates or other tribunal without suggesting what would be either an excuse for, or an extenuation of, his offence. SIR WILLIAM HARCOURT said, that evidence of provocation might be brought forward which could not be given in the Court below. MR. GRANTHAM said, it would be strange, if there was evidence of provocation, if it was not brought forward in the first instance. COLONEL NOLAN said, he hoped the right hon. and learned Gentleman (Mr. Plunket) was not going to persist in this Amendment. The proposal of the Bill was only what was done in cases of courts martial. The confirming authority had always power to reduce any sentence; and if they were going to have, perhaps not martial law in Ireland, but something not far removed from it, it would be desirable to follow the best rules of that law. He hoped the Government would not give way; and, certainly, if they were to go through the long list of Amendments to Clauses 2 and 3 in this way, it would be well to report Progress and renew their discussion at the next Sitting. DR. COMMINS said, the Amendment appeared to him to be utterly illogical, as the Home Secretary had pointed out. The appeal would be in itself a new trial. Where there was a new trial there should be power to take fresh evidence, and where there was power to take fresh evidence there should be power to alter a sentence. SIR HARDINGE GIFFARD said, some of the arguments against the Amendment were mischievous. Let them see what they would come to. They could not lay down any rules as to sentences; therefore, in every case there might be an appeal as to the amount of the sentence, and the Court of Appeal might not agree with the Court below. They would have constant reviews of the decisions of the Judges as to the amount of sentence, which was entirely alien to our whole system of jurisprudence. MR. PLUNKET said, he did not wish to put the Committee to the trouble of dividing; but he considered his Amendment so important that he could not withdraw it. Question put, and agreed to. MR. HEALY asked leave to withdraw the Amendment. MR. LEAMY asked the right hon. and learned Gentleman the Home Secretary if he would also give a list of the persons sentenced by the Court of Summary Jurisdiction? Amendment, by leave, withdrawn. Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill.” MR. WARTON moved, in page 2, to leave out Clause 2. He hoped the Committee would grant him its indulgence, for this was the only Amendment he had put down to the Bill. He thought the Government would consider he was anxious to support them as far as he possibly could in passing the Bill; it was his duty, as a Conservative, to support the Government in the prosecution of this measure, though he felt bound to take exception to this particular clause. It was true that this was an extreme measure, but it was an extraordinarily good one. He could hardly conceive a better Court than one composed of three Judges armed with such serious responsibilities. From what he had seen of Irish Law Officers, to whom Parliament generally looked for the future Judges, MR. HEALY moved, in page 2, line he had every confidence in the Irish judi39, to insert ciary-in fact, when this Bill passed, he would not be afraid if his life were placed in the hands of three Irish Judges. The reason why he wanted to press this Amendment was that the Government had not given way on a single point. The clause was untouched by any division; but he must ask the Committee to pause for a moment, for really their object was not to pass the Bill with extra (5.) During the continuance of this Act a list of all persons sentenced under this Act, with a statement opposite each person's name of the date of his conviction and the grounds thereof, with the prison in which he is detained, and the names of the judges by whom he was convicted, shall be laid before each House of Parliament within the first seven days of March and August in each year if Parliament be sitting, or if Parliament be not sitting, then in the first seven days after the next meeting of Par-ordinary celerity, but to consider what liament." He understood the Government were prepared to assent to the Amendment. SIR WILLIAM HARCOURT asked the hon. Member to postpone the Amendment in order to bring it up amongst the Regulation Clauses at the end of the Bill. He quite agreed that such particulars as were specified in the Amendment should be laid before Parliament; but the Amendment was of such a character that it could not properly be considered under the Appeal Clause. Substantially they accepted the principle of the Amendment. they were doing. It was proposed to have three Judges of great eminence to try certain cases. The prisoner was to have an immense advantage, inasmuch as the three Judges were to be unanimous in favour of a conviction. In every Civil case the majority prevailed. Now, consider how the proposition would work in practice. In almost every case there would be an appeal to delay justice, if for no other reason. The law should be a terror to evil-doers; and the whole object of this measure was, as he understood, to strike terror into the criminal, and to make the law short, sharp, and (Ireland) Bill. decisive. If they allowed appeal they | it would be a well-founded cry, and one would rob the Bill of all its terror and which those who had been so foolish as efficiency. He protested against the to reflect upon the honour and reputaclause, which seemed the only weak part tion of the three Judges who had origiof an otherwise strong Bill. What nally tried the case, by granting the right would be the effect of a prisoner being of appeal, would deserve to have ringing allowed to bring additional evidence in their ears. The right of appeal was into the Court of Appeal? The right monstrous. If they agreed that two hon. and learned Gentleman knew full Judges might carry a point against one well what was the consequence of there in the Court below, then the majority being the right of appeal in his own might prevail in the Court above. Irish Office, the duties of which Office the right Judges ought to be as good as English hon. and learned Gentleman had dis- Judges; and, as far as he was concerned, charged so well. The right hon. and no heed was paid to all the nonsense learned Gentleman knew that when a they heard about political partizanship. prisoner had tried one defence before a He believed that when a man became a jury and had failed, he had, when the ap- Judge, whether he had been a partizan peal was heard, started another and a dis- or not, he was just as good, and as fair, honest defence. His (Mr. Warton's) as if he had had no politics. Men ought objection to an appeal under this Bill to forget their politics when they were was that the Court of Appeal would be a elevated to the Judicial Bench, and he Court for the propagation of perjury; believed they did. He earnestly hoped prisoners would look about for a second the Government would pause before alibi where the first one had failed. It was granting the right of appeal. He must unheard of in our law to allow any appeal repeat his argument, for he felt he was in criminal cases as to matter of fact, and almost addressing a jury who required it would not do to reverse the principle the same thing to be reiterated and reof our law simply because this was an iterated until they understood the point. extraordinary trbunal. He heard it If in the Court of Appeal three Judges gravely stated by the Home Secretary were favourable to the conviction, and that he considered the question of in- two against, it would be said the man timidation a more serious matter than had been hanged by three to two, and that of appeal, because it happened to that was his strong objection to the be the fighting-ground for many people. clause. It was as much in the interest The right hon. and learned Gentleman of the prisoner as in the interest of the knew quite well that no practical altera- Crown that they must faithfully adhere to tion would take place in the definition the principle of our law. ["Agreed!"] of intimidation; and he (Mr. Warton) Yes; he sincerely hoped the Committee affirmed, without hesitation, that the had agreed to accept his Amendment. question of appeal was a much more im- In all his experience of criminal cases— portant one, because it involved so many and he had a great reverence for the violations of the principle of our exist- principle of English law-he never heard ing law. There ought to be no appeal of an appeal on a question of fact; and in cases of fact; three Judges were quite he had certainly never heard of fresh competent to determine a question of evidence being brought in any case of that kind. He was anxious to review appeal. Besides the danger of terrorthe case fairly and impartially, and there- izing witnesses, which fresh evidence fore would now consider it from the point would produce, he saw a second danger. of view of the prisoner. Let them take What would be the effect of fresh evithe case of three Judges having found a dence on the part of the Crown ? man guilty of the capital offence, and They could not allow fresh evidence on consider what the effect would be when the one side without allowing it on the the Court of Appeal sat. The Court of other. The sentence could not be inAppeal, consisting of five Judges, as it creased by the Court of Appeal; but the might under the Bill, was to determine Home Secretary argued that the proa case by a majority, so that when a duction of fresh facts might necessarily majority of three to two confirmed a lead to a limitation of the sentence. The sentence of death, the cry would run fact that they allowed an appeal in the through Ireland that the condemned had case of facts admitted the possibility of been hanged by three to two, and so far a variation of the sentence. For the Mr. Warton |