HC Deb 01 May 1849 vol 104 cc1090-101
MR. KEOGH

, pursuant to notice, then rose to call the attention of the House to the general management of Crown prosecutions in Ireland, at assizes and sessions, and to the expenditure incurred in these prosecutions. The subject, he said, was one of general importance to Ireland; and the system to which his notice referred, if only in a pecuniary point of view, called loudly for an alteration, seeing that large sums of the public money were expended upon these Crown prosecutions in a manner least calculated to produce the effect for which they were instituted. He did not intend, in bringing forward his Motion, to make the slightest charge against the Government, nor did he intend to refer to the late State prosecutions in Ireland, the more especially as he perceived his hon. Friend the Member for Montrose had a notice on that subject on the Paper, which would shortly be brought before the House; but although he did not intend to refer to those matters, he would have to occupy the attention of the House while he stated some facts in support of his Motion. No doubt the attention of Government had been wholly directed to far more important matters; but still it must not be forgotten that a system which involved a certain speedy and uniform administration of the law ought to form an essential ingredient in any plan for permanently improving the state and condition of Ireland. As regards the expenditure upon these prosecutions, he found that in the year 1847 a vote was taken for Crown prosecutions in Ireland amounting to 71,000l., forming a very considerable sum in the Miscellaneous Estimates, while in 1830 the expense incurred was only 37,500l., showing an increase of 34,000l. in the intermediate period. Another item to which he wished to direct the attention of the House was this: in the year 1846, the expense incurred in the nature of fees payable to counsel for prosecutions was 12,000l., whilst in the following year, 1847, it had increased to the large sum of 19,000l.; and therefore, whether they consider the importance of this subject, as far as it was calculated to produce an efficient administration of the law in Ireland in the vast expenditure incurred in these prosecutions, it was one well worthy of the attention of the House and the Government. Indeed, it might resolve itself into a question of the propriety of establishing a public prosecutor, or, to follow the example of this country, in appointing Crown prosecutors for the different counties. Some time ago, the system adopted was to have a Crown solicitor in each of the different circuits. That system was continued down to the year 1842, when it was recommended by a Treasury Minute that these Crown solicitors should be made more numerous, with reduced salaries, and distributed over the counties instead of being confined to the circuits, and that system had remained in force ever since; and the result of it had been, of course, to increase the number of persons engaged in these general prosecutions. In addition, however, to these Crown solicitors, there were what were called sessional solicitors. Now, four-fifths of the Crown business was transacted at sessions; and yet, strange to say, small contemptible salaries were paid to these latter officers, which were barely Sufficient to enable them to discharge their duties, whilst the assize solicitor received a much higher remuneration. Every magistrate in the country could speak to the inefficient manner in which the business of his country was managed by the Crown solicitors. They generally travelled in a great hurry through the country, and in most of the prosecutions they were called upon to conduct, they knew little or nothing of the case, being too often instructed by a police sergeant or a stipendiary magistrate; and when the prisoner came to the bar, he had the satisfaction of finding the prosecutor so ignorant of the facts of his case, that the jury had no alternative but to acquit him. That was the mode of proceeding at sessions, and a similar course prevailed at the assizes; and while such a system continued, it was impossible that the criminal business of the country could be well conducted. The consequence was, that the people speculated upon the chances of an acquittal; and how could it be otherwise, when they saw at every assize in eight out of twelve cases there was an acquittal, while parties who had listened to the trials left the court with the impression upon their minds that had an efficient prosecution taken place, a conviction must inevitably have followed? But this was not all. Unfortunately, within the last few years a system had obtained a footing, the operation of which was tantamount to a perfect denial of justice. Whether influenced by motives of economy, or a desire to improve the former practice, he could not say, but certainly the Attorney General for the last two years had come to the resolution that in what were called larceny cases, there should be no prosecution at all; so that, during the last two years, offences which did not come up to what were called White-boy cases were not prosecuted at all; and so long as that rule lasted, no expenditure of money, nor exertions of the Government, would be sufficient to suppress crime. Let him, in a word or two, point out the practical operation of this rule. The solicitor to the Crown did not take up larceny cases, because he was not paid for them; and in default of his looking after such prosecutions, the duty devolved upon the clerk of the peace, whose time was so much taken up with them at the sessions and assizes, that he was utterly unable to check the presentments and attend to the management of the fiscal business of the county. In the case of the county of Limerick, for instance, at a recent assize, the clerk of the Crown, instead of attending to that description of business, was engaged every day in conducting prosecutions, to the number of 230; in a great number of which there was an absolute failure of justice, owing to that gentleman having had no previous acquaintance of the circumstances of each case. But the instance of Limerick was not a solitary one; for there were many of his hon. friends in the House who were perfectly aware of similar systems prevailing in different counties in Ireland; and from one end of the country to the other there were heard nothing but complaints upon this subject, mingled with an earnest demand for an alteration in the system. There was another branch of the subject to which he wished to direct the attention of the House and the Government. Without making any invidious observations upon the knowledge of portions of the Irish bar, he might be allowed to say, that within the last few years there had been so many changes and alterations in the criminal law of the country, that for the due and proper conduct of the criminal business of Ireland, it was absolutely necessary that the Crown counsel should be well versed in those changes, and fully competent to carry out a prosecution with energy and ability. Now, what was the fact? Why, upon every circuit in Ireland the leading Crown counsel was what was called the "father" of the bar; in other words, as his title indicated, he was the oldest member of the bar; and, in fact and in truth, most, if not all, of the Crown prosecutors had held their offices for the last half-century. A memorial had been presented from one part of Ireland complaining of this—and very properly so, too; for a gentleman who had been so long called to the bar could not be very familiar with the changes which had since and were continually taking place in the law. Another branch of the system of administering criminal justice in Ireland loudly complained of was, the manner in which the duties of the stipendiary magistracy were performed, upon whom, of necessity, many functions rested of a highly important character. Now, from what class were those gentlemen selected? For his part, he generally found them to be retired half-pay captains—perhaps active partisans at elections; and yet they all knew, as he had already observed, upon no one did more important duties devolve than upon these officers—duties, too, which necessarily involved a tolerable acquaintance with the criminal law of the country. For instance, in the absence of counsel, the duty of preparing cases for prosecution at the assizes or the sessions devolved upon the stipendiary magistrate; and yet no care was taken to select them from professions fitting them for the office, such as barristers or solicitors, whose previous avocations would enable them to give proper consideration, and readily understand the cases brought under their notice. It could not be disputed, therefore, that in consequence of these defects in the legal machinery, there were frequent occurrences of an absolute denial of justice. The people of Ireland, ever remarkable for their astuteness, did not lose sight of these things; and, in committing crime, a man well calculated the chances of his conviction in the event of its being detected; so that those defects in the law acted, in point of fact, as instigators to the commital of offences. Without troubling the House, therefore, with further details, he thought he had stated sufficient to justify his asking Government for the appointment of a Committee on this question. Almost every commission which had sat upon the administration of the law in Ireland, had recommended a change in this system; yet, up to this time, no effectual change had taken place, with the exception of that made by the Attorney General, which had only served to defeat the ends of justice, and accumulate the expenditure. Upon these grounds—though he did not hope for any immediate amendment—he hoped the House would grant a Committee upon this subject, which would involve no protracted inquiry, but which might result in suggesting a change that would secure a certain, speedy, and uniform administration of the criminal law in Ireland.

Motion made, and Question proposed— That a Select Committee be appointed, to inquire into the general management of Crown Prosecutions in Ireland at Assizes and Sessions, and into the expenditure incurred in those prosecutions.

The ATTORNEY GENERAL

said, before he proceeded to state to the House the short grounds why he apprehended this Committee ought not to be appointed, he must be allowed to thank the hon. and learned Member for Athlone for the tone and manner in which he had brought this question before the House. The hon. and learned Gentleman had abstained very properly from introducing topics of a personal or exciting character, which he might have had recourse to; and, following the same course and the same line of argument, he (the Attorney General) would endeavour, as shortly as possible, to satisfy the House that this case could be properly left in the hands in which the constitution had placed it—namely, in that of his right hon. Friend the Attorney General for Ireland. He must, in the first place, remind the House that the large increase of expenditure which the hon. and learned Gentleman referred to, occurred some time before his right hon. Friend the Attorney General for Ireland came into office; but having found, as his right hon. Friend did, from inquiries into the system, that a very expensive system had previously regulated the criminal administration of Ireland, he availed himself of the earliest opportunity, and his long experience, in effecting a reduction of the expenditure to the extent of one half; and he (the Attorney General) was surprised that his hon. and learned Friend, who formerly assisted in some of these Crown prosecutions under the old system, should not have found out, by his recent experience, the beneficial effects which had resulted from the alteration. His right hon. Friend the Attorney General for Ireland came into office early in 1848, or towards the close of 1847, while the excessive expenditure took place in 1846 and 1847; but immediately upon his taking office, he adopted measures for reducing it, which he would by and by state in detail, the results of which had proved highly satisfactory, and established his desire to faithfully discharge his duty to the country. Now, some years ago the practice in Ireland was the same as in this country—namely, criminal prosecutions were conducted at the expense of each county, and managed by local solicitors, who employed counsel of their own choice. At that time, none but extraordinary cases were prosecuted at the expense of Government; but with succeeding Attorney Generals changes were made in the system, and numerous cases were taken up by the Crown, which ultimately led to the adoption of a most expensive system. It then became the practice to have two counsel for each case; and when the two Judges on circuit were engaged upon criminal prosecutions in two courts, then it was usual to instruct four counsel to provide for each case, and the consequent expense of preparing four briefs was incurred. At this time, the Crown solicitor was paid by fees, and of course he did not stand very nice in making four briefs, and waiting to ascertain the necessity of such a proceeding. In 1834, Mr. Attorney General Blackburn issued a general direction to the Crown solicitor, which he would now shortly bring under the attention of the House. Mr. Attorney General Blackburn said, in his direction, that, with the concurrence of the Solicitor General, he proposed that in ordinary cases two counsel only should be employed on the part of the Crown, and that the fees payable to the advising and preparing the indictment in each ease should be 3l. 3s., and to his junior, 2l. 2s., the Crown solicitor having discretion in cases of difficulty or importance of calling in the aid of two other Crown counsel, or when two courts were sitting, and cases were likely to come on in both courts. Now, the House would at once perceive that the matter was in a great measure left to the discretion of the Crown solicitor, who, of course, from the manner in which he was paid, considered every case of importance, and continued to fee four counsel and deliver four briefs in each case wherever two courts were sitting. In addition, however, to all that, there was the practice of delivering the depositions in all cases for his advice; but he should perhaps best illustrate this point by mentioning a particular case which occurred to his right hon. Friend the present Attorney General for Ireland. The depositions in two hundred and odd cases were delivered to him in one set, and indorsed upon all the cases was the general fee of thirty guineas, to advise upon the propriety of proceeding with the prosecutions; and, considering the station of his right hon. Friend, the House would agree with him in thinking that was a reasonable and moderate sum. But what was the practice when his right hon. Friend came into office? Why, he found that, in addition to this foe of thirty guineas given to him for advising on each case, or on all the cases in a bulk, when the Crown counsel went down on circuit, each case was submitted separately to him to advise upon, with a fee of a guinea each, so that he received 300 guineas for doing that which the Attorney General had already done for thirty. Now, his right hon. Friend came into office late in 1847, or early in 1848. At that time, or soon afterwards, under the direction of the Lord Lieutenant, he went down into the country to conduct a special assize, but his attention was then so much engrossed by the one matter he was engaged upon, that he had not an opportunity of directing his mind to the details of these charges; but on his return, and before the next circuit, he issued to the various Crown solicitors an instruction which reflected as much credit upon the judgment of his right hon. Friend, as the ready acquiescence in its terms was honourable to the profession of which the hon. and learned Gentleman who had introduced this subject was a member. On the 4th of July, 1848, his right hon. Friend issued this circular:— 1. No more than two counsel shall be employed in each case on the part of the Crown; this rule to apply to all cases, whether only one or both courts are disposing of criminal business. If only one is so occupied, the counsel to be employed are the permanent Crown counsel on the circuit; when both courts are engaged in criminal business, the two supernumerary counsel ought to be employed. When convenient, it will be advisable that one of the permanent and one of the supernumerary counsel should be employed in each court; but this is to be at the discretion of the senior Crown counsel, who will make such arrangements as he shall consider most conducive to the public service; but the expense of more than two counsel is not to be incurred in any case. In any case this will render it necessary that the permanent counsel should return any briefs they may have received, which, in consequence of both courts sitting in criminal business, they shall be unable to attend to. It was very creditable to the bar that they had acquiesced in this rule. The second rule was this:— 2. When there are a number of cases of the same description, and only one or two witnesses to be examined, as, for instance, in prosecutions under the recent Act, for having arms without licence in a proclaimed district, as occurred in some counties on the last circuit, only one counsel is to be employed in each such case, and a very small fee paid. The necessity of this rule would be apparent when the House was informed, that under the old system four counsel were employed at one assize town in each of eighty cases, arising out of mere matters of form under the Arms Act. The third rule was— 3. Cases in which prosecutions have been directed by the Attorney General are not to be submitted to counsel on circuit for directions (as is now done in all cases) unless in cases in which such directions are equally required by the Crown solicitor for his guidance, as when some of the witnesses do not attend, or their examinations vary from their informations: the object of this rule is merely to limit the eases for directions to those instances in which such directions are really required. The House would remember that this rule was to meet the case where, after the depositions had been examined by the Attorney General, they were referred to the Crown counsel, who merely attached his signature to them, for which he received a guinea for each case. The remainder of the instructions were as follows:— 4. A similar course is to be observed in relation to indictments in these cases of frequent occurrence, in which a settled form of indictment is used, the expense of submitting them to counsel should not be incurred, but in cases of difficulty the present practice is to be continued; but when counsel receive their briefs (if any mistake has occurred in the indictment), they will of course have proper indictments sent to the grand jury. 5. Briefs are not to be given out to counsel until the prisoner has pleaded, the intention being that the expense of employing counsel shall not be incurred in cases in which the accused is not amenable, or pleads guilty. 6. The amount of fees whore a trial is had, unless in cases to which the second rule applies, is to be regulated by Mr. Blackburn's letter of June, 1834, namely, not exceeding three guineas to the senior Crown prosecutor, and two guineas to each of the other counsel employed. 7. The Crown is not to be at the expense of defending prisoners; and therefore should the Court think right to assign counsel for a prisoner's defence, such counsel should act gratuitously, as is the case in England. These regulations, he was sure, would convince the House that the matter might be safely left in the hands of his right hon. Friend the Attorney General for Ireland. He held in his hand a return which would at once show the beneficial operation of these rules since the circuit of 1848. It was a return of the expenses incurred on all the circuits from 1840 to 1848. At the spring Munster assizes of the latter year, before the rules came into operation, 375 trials took place, at the expense of 3,223l. 10s.; at the last assizes, under the new rule, 348 trials occurred, at an expense of 878l.; so that nearly the same number had been tried for 878l. which had previously cost 3,223l. Now, did not that show that the matter might be safely left to the judgment of his right hon. Friend? At all events, he apprehended it was sufficient to justify the House in refusing to grant a Committee. What more could a Committee possibly do? While, if one were appointed, would it not be tantamount to saying that the right hon. the Attorney General for Ireland was not pursuing the right course—would it not, indeed, be casting censure on him for what he had really done? But, said the hon. and learned Gentleman who brought forward this Motion, in Ireland the office of Crown counsel was held in most oases by gentlemen who had grown infirm in the discharge of their duties. Well, was not that the case in England? Was it the practice of this country to dismiss gentlemen from their offices because they were somewhat advanced in age? Such cases did not call for the exercise of authority, but ought rather to be left to the good feeling of the gentlemen who held these offices, and it was utterly useless calling upon Government to remove them. He would now, with the permission of the House, just advert in a few words to the memorial to which the hon. and learned Gentleman had made some slight allusion. That memorial had been presented from the grand jury, who had made a contrast between the manner in which their assize business had been transacted by an aged Crown counsel, and the mode in which his right hon. Friend despatched the business of an adjoining county. Certainly that was a high testimonial of the ability of his right hon. Friend; but the mere fact of these gentlemen being dissatisfied with the result of such a comparison, was not sufficient to justify the Crown in dismissing their counsel. He thought it ought to be sufficient to convince the House that his right hon. Friend wished to discharge his duty to the best of his ability, and to use his utmost exertions to introduce some improvement into the present system. The hon. and learned Member had alluded to another point. He had said that there had been a failure of justice in consequence of the indisposition of the Attorney General for Ireland to prosecute every case of petty larceny, pocket-picking, and other matters of the kind. Now, he thought that the proper course had been taken in not prosecuting these cases. As the fees and cost for the preparation of briefs, in cases conducted by the Crown were great, the Attorney General for Ireland had given directions that only one fee should be handed to counsel in such cases, and that whenever the clerk of the Crown complained of the heaviness of expense in any case, only one counsel should be employed. The object which his right hon. Friend had had in view was, to save expense; and at the same time he secured the Irish bar from the abuses which were creeping into it with respect to the management of these cases, to take care that the administration of the criminal law of the country should not miscarry. He (the Attorney General) apprehended that his right hon. Friend had been successful in his endeavours in this direction; and he thanked the hon. and learned Gentleman opposite for the opportunity which he had afforded him of making this explanation to the House. But he thought the House would concur with him in thinking that it would be making a very bad return for the exertions which his right hon. Friend had made at the commencement of his career, and which he was about to carry out still further, to pass the apparent censure upon him involved in the Motion of the hon. and learned Member opposite. Having, as he believed, answered the charge which the hon. and learned Member had brought forward, he trusted that he would see the propriety of withdrawing his Motion.

MR. KEOGH

thanked the hon. and learned Gentleman (the Attorney General) for the manner in which he had been pleased to speak of the mode in which he had brought forward his Motion; but the hon. and learned Gentleman had paid him another compliment which he did not deserve. The hon. and learned Gentleman seemed to think he was going to make an onslaught on the Attorney General for Ireland—and had taken the trouble to defend him against a series of charges which he (Mr. Keogh) had never made. The hon. and learned Gentleman had not, however, said, one word upon some of the important topics which he had introduced. For instance, he had made no allusion to the management of Crown prosecutions by the Crown solicitors, a source of great expense to the country.

The ATTORNEY GENERAL

knew that the hon. and learned Member for Athlone was not going to make an onslaught on his right hon. Friend the Attorney General for Ireland, for he had told him so at the commencement of his speech; but he was glad of an opportunity of refuting charges which, if not openly made, were insinuated. He thought he had disposed of all the topics in his hon. and learned Friend's speech.

MR. O'FLAHERTY

was glad to hear the admission that a reduction in the expense of these prosecutions had been commenced, and that it would be still further carried out.

MR. HENLEY

trusted he had not rightly understood the Attorney General to say that because a gentleman was old in his office, any delicacy should be shown with respect to his removal. Where the proper dispensation of the criminal justice of the country was concerned, he thought such a consideration superfluous. With respect to the reforms which the Attorney General for Ireland had introduced, they might be expected at first to cause inconvenience, but he trusted that they would be carried out still further.

SIR W. SOMERVILLE

was happy to find that the reforms which his right hon. Friend the Attorney General for Ireland had introduced, had met with, he might almost say, the universal approbation of the House. It was also gratifying to know that the diminution effected in expenditure had involved no falling off in the efficiency of the system.

MR. MONSELL

thought it an unfortunate circumstance, that under the present system so small a proportion of persons committed underwent trial. The omission entailed injustice to the persons charged with offences, and expense to the country.

The ATTORNEY GENERAL

doubted whether a Committee would have it in their power to obviate the objection of the hon. Member.

Motion, by leave, withdrawn.

The House adjourned at a quarter after Nine o'clock.