LORD PENZANCE ON CRIMINAL APPEALS.
LORD PENZANCE, in asking for information no small part of which was already before Parliament,—we mean the returns of all the capital sentences commuted by the authority of the Home Secretary for lighter, or what were supposed to be lighter, punishments within the last eleven years, 1859-1869 both inclusive,—made a speech on Monday which, with the criticisms of the Lord Chancellor and others upon it, will do a good deal to clear the public judgment on the long disputed subject of the exercise of the preroga- tive of mercy and the demand for a Criminal Court of Appeal. Lord Penzance's argument did not point to a regular Court of Appeal intended to review the whole evidence by the ordinary legal rules and methods, but to a small public tribunal, of which Lord Penzance suggested that the Home Secretary him- self might be a member, empowered to receive all kinds of evidence, moral as well as legal, but only evidence given on oath, and to act upon it by either annulling the sentence of the lower tribunal or modifying it, or ordering a fresh trial. Lord Penzance's great objection to the review by the Home Secre- tary to which criminal sentences are now subjected, is that it is influenced by evidence volunteered and seldom given upon oath, and which is, very naturally, all tendered by those who are interested for the convict, and never sifted by cross- examination and criticism before any jury,--evidence, more- over, all given and weighed in private without the public being made acquainted with its nature and force. Con- sequently, said Lord Penzance, even when justice is done by the commutation of sentence, the people do not know that justice has been done, which is almost, if not quite, as important for the purpose of inspiring confidence in the law, as that justice should be done at all. Lord Penzance further suggested that if it were thought better to send to such a court of review only such cases as seemed to the Home Secretary deserving of a careful re-consideration,- generally, of course, on the ground that, either from the sup- pression of important evidence since produced, or from any other cause, there had been a failure of justice,—even, then, a tribunal with functions so limited might be found to remedy a great part of the existing mischief. To Lord Penzance's proposal the Lord Chancellor replied very forcibly that the proposed tribunal would be just as liable to be inun- dated with ex parts evidence, all favourable to the prisoner, as the Home Secretary himself, and that, as it was to be allowed to take moral evidence, and not restricted to legal evidence, and was to consist of laymen as well as professional lawyers, its decisions would command little more weight, and be liable to mach the same kind of criticism as those of the Home Secretary himself.
On a careful review of all the arguments and facts urged on both sides, we cannot but think that the drift of the reasoning is all in one direction ;which also seems, if we construe it rightly, to be the conclusion of a very able article in Monday's Times ; and this is the conclusion to which the evidence points, that there is no case to be made at all—quite the reverse—for any attempt to exercise the prerogative of mercy, the prerogative of the Crown, through the intervention of a new Court ; — but that there is a very strong case for the re-hearing, not by an irre- gular tribunal empowered to take moral evidence, but by a regular though rarely needed court of appeal, of any case in which it may seem to so responsible an official as the Home Secretary that there has been a definite miscarriage of justice, either through the suppression of evidence now attainable, or through any 'other of the very infrequent, but still periodically occurring, causes of error. First, no one, we think, can be satisfied with the expedient of a free pardon for an innocent man convicted of a crime of which he is known not to have been guilty. An innocent man does not stand in need of pardon, and he has a positive right to have his innocence declared by a process as trustworthy, and by forms as solemn and impressive, as those which condemned his apparent guilt.. Out of 117 capital sentences which have been commuted in I eleven years, there have been four pardons and one conviction I quashed. Of these four pardons one only was in any way con- ditional, BO that, no doubt, three of them were pardons given to substantially innocent persons. It can be scarcely matter of question that to reverse a criminal sentence passed on an inno- cent man, though passed on evidence that seemed sufficient and plausible at the time, by the machinery of a pardon, is one of the grossest and most unjust of anomalies. But these are not the only cases where it seems all but certain that the judgment of the Home Secretary was founded on what seemed to him new evidence of a weighty kind. Besides the four pardons and the case of the quashed conviction, there were eight com- mutations of sentences to limited terms of years ; three of them being only for a single year, leaving 104 cases out of the 117 sentences commuted in which the punishment sub- stituted for that of death was simply penal servitude for- life. Now, it is fair to conclude that in the vast- majority of cases of these eleven years,—in 104 at least. out of 117,—the Home Secretary saw no case at all of real failure of justice, or he would hardly have sub- stituted the highest secondary penalty for that of death. In at least 104 out of the 117, he must have seen no case for a new trial, but only reasons for somewhat qualifying by- moral considerations the severity of the sentences passed. Now, it is not only right but wise for the Minister of Justice in any country—and as yet at least our Home Secretary is Minister of Justice—to take into account the state of public opinion in relation to any particular kind of guilt. It can never be desirable to inflict the highest penalty,—the penalty which. should be reserved for the highest expression of public indignation and horror,—on one who for whatever cause has gained the compassion and sympathy of a large pro- portion of the people. It is not wise to demoralize the gallows ; and whenever the evidence is of a kind to. support the sentence, but still to show really powerful ex- tenuating considerations, the Home Secretary is not only • justified in ordering a commutation of sentence, but we cannot conceive of any referee so likely to judge the mattbr well. He has every reason for avoiding the appearance of weakness. He cannot desire, he must excessively dread, anything that, can weaken the sense of responsibility felt by judges and juries.. He is aware that mercy can only be wisely extended to persons for whom the people in general feel compassion, and think that there is great excuse. Whatever he decides, he is sure to be sharply criticized, and it is always safe, therefore, to go with the Court, while to go against it requires a clear convic- tion that exceptional considerations do exist. Take the reprieve of Bisgrove, the Wells murderer, whom the Standard vehe- mently asserts to have been as guilty as the boy Mobbs, who was not reprieved. There was in Bisgrove's case the clear proof, which did not come out on the trial, that the man had long been subject to epileptic fits,—fits known to have the most powerful effect in disordering intelligence and volition,— whereas nothing of the kind was, we believe, established in the case of Mobbs. We hold that where the duty of the Home Secretary is limited to considering the weight of extenuating circumstances, you cannot by possibility have a tribunal half as good. What you need is an act of practi- cal judgment formed upon moral considerations of a very- delicate nature, involving at once the state of public opinion and the general moral impression produced by the trial. No one can possibly be more competent to form such a judgment than a Minister chosen for his tact and sagacity, in daily' intercourse with a great representative assembly, and on whom all the injurious effects of unduly weakening the sense of responsibility of the regular tribunals must almost int- mediately recoil. To talk of sifting evidence and cross- examining witnesses for such a purpose as this is surely nonsense. When it is a question of simply softening or re- fusing to soften the severity of the sentence, in consideration of certain moral considerations of which judge and. jury can take no better account than any other men of equal. sagacity, what you need is a man of wise judgment, of keen sense of responsibility, and fully alive to the- tendencies of public opinion. And the more you rely on, his exercise of discretion, and the less you worry him to analyze his reasons, the better in general will be your results. Not a single argument has been advanced against the jurisdiction of the Home Secretary, and in favour of a, new tribunal to consider matters of this sort, which would not equally apply against the ordinary Courts, and, of course,. a fortiori against any such irregular court of appeal as Lord Penzance proposed. Take, for instance, such reasons as the following, advanced by the Standard:—" The complaint against all this is the uncertainty it creates ; the difference in temperament between one Home Secretary and another ; the influence of popular feeling ; the danger of petulant reactions, on one side or another, at the Home Office ; the irresponsibility of this tribunal ; the shifting direction, from one time to another, of popular sympathy ; the conceivable wrong done to poor and friendless culprits ; the impossibility, under this system, of laying down a principle or establishing a pre- cedent." There is not one of these reasons,—unless it be "the danger of petulant reactions on one side or another at the Home Office," and we do not quite know to what sup- posed facts that refers,—which not only does not apply to such a tribunal as Lord Penzance proposes, but which is not expressly admitted by Lord Penzance himself to apply to the regular Courts from which appeal is made. "The un- certainty" the system creates ; well, Lord Penzance occupied a good part of his speech in commenting on the still greater uncertainty of the Judges' sentences, which varied, he said, with the personal feelings of every judge. Indeed, 104 commutations to life sentences out of 117 capital sentences commuted in eleven years can hardly be said to suggest as much uncertainty as seems, on Lord Penzance's own evidence, to follow the idiosyncrasies of the regular judges. "The difference in temperament between one Home Sec- retary and another ;" well, there is the difference in tem- perament between one judge and another, which Lord Pen- zance says is immense. "The influence of popular feeling ; ' —well, a certain scope for that, in considering the force of extenuating circumstances is not only in- evitable, but desirable, and the only difference between a public tribunal and a Home Secretary is, that the latter is in a far better position to gauge it well than the former. "The irresponsibility of the tribunal ;"—surely that applies far more to Lord Penzance's irregular tribunal than to the Home Secretary, who is responsible to the House of Commons, and keenly feels his responsibility. "The con- ceivable wrong done to poor and friendless culprits ;"—that extends to both tribunals alike. "The impossibility of laying down a principle or establishing a precedent ;"—that is implied directly you admit moral considerations as of equal weight with legal,—and for this Lord Penzance expressly asks. In short, so far as the Home Secretary's review simply extends to extenuating circumstances, and does not challenge the main facts established on the trial, the whole discussion seems to us to bring out the excellence instead of the defects of the exist- ing system for dispensing mercy. But beyond this, as we have already intimated, we do see, in very rare cases, a real need for a legal—not a moral—Court of Cessation. When new evidence of the first importance in its bearing on the verdict and sentence is produced, we do not think that it should be either admitted or refused without regular sifting before a regular Court of justice. This is a ques- tion of right and law, and not of mercy at all. It is pretty clear that in the vast majority of cases of commuted sentences no such evidence can have been produced; but in the few exceptional cases, the Home Secretary surely ought to have power to send the case for a new hearing to a Court of appeal, where the former verdict and sentence could be confirmed or annulled after a strict legal investigation, if necessary. While nothing can be better than the decision of a wise and responsible statesman on the character of merely extenuating circum- stances, nothing can be more unsatisfactory than his decision on the drift of entirely new facts never yet sifted in a Court of justice. If Lord Penzance's suggestion had been confined to asking for a regular legal Court of Appeal in the very few cases in which the Home Secretary can see reason to suppose that there may have been a real failure of justice, and if he had been content to leave the commutation of seemingly severe sentences on delicate moral grounds to the very autho- rity he was trying to dispense with, we should have thought his case a very strong one. But we must earnestly deprecate the formation of any new tribunal to deal with purely moral considerations affecting the stringency of the sentence. There must be some individual authority to exercise the final preroga- tive of mercy in any case. Even Lord Penzance did not appear to deny that. There would be nothing but the most injurious delay, and a great increase of uncertainty, in interposing an intermediate tribunal of this kind between the regular Courts of law, and the Minister in whose hands the decision must be lodged at last.
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