PROCURATORS FISCAL (SCOTLAND.) (Hansard, 27 February 1834)

Mr. Murray

said, that in moving for leave to bring in a Bill for the appointment of Procurators Fiscal, similar to that which was brought forward during the last Session, he did not think it necessary to take up much of the time of the House, further than to explain very shortly the nature of the appointment. In every Sheriff's Court there is a Procurator Fiscal, who, with the exception of cases which are conducted by private parties, and these are very few in number, is the prosecutor in all criminal proceedings. Before the Rebellion which took place in 1745, the office of Sheriff had become hereditary, but by the Jurisdiction Act, which was passed in the 20th of Geo. 2nd, the hereditary Sheriffs were abolished, and it was provided that Sheriffs Depute, of certain prescribed legal qualifications, should in future be appointed by the Crown. In the old Courts, the Procurators Fiscal, and all the other officers of Court, were appointed by the heritable Sheriffs. In establishing the 941 sheriffs depute, no provision had been made with regard to the appointment of procurators fiscal and the sheriffs depute some how or other came to appoint them. The sheriff, who is a Magistrate and a Judge, claimed the right of appointing, in at least nineteen out of twenty cases, perhaps the average of ninety-nine out of 100 would be nearer the truth—the prosecutor, both in the cases which came before him as a Magistrate, and in those which he was to try as a Judge; and the Sheriffs have declared, that they consider it necessary that the Procurator Fiscal should be a person on whom the Sheriff' can repose implicit confidence, and who is completely under his control. This was what he objected to. In every proceeding before a Magistrate or a judge, the prosecutor and the judge ought to be kept perfectly separate and distinct. If the prosecutor was to be always under the control of the Judge, and in his implicit confidence, the prosecution must be regarded, in many instances, as the prosecution of the Magistrate, not that of the apparent prosecutor, for the party must feel that if the Judge was averse to the prosecution it would not have been instituted; and if, on the other hand, it was a case in which the person whose apparent function it was to prosecute was averse from prosecution, he could not venture to disobey the intimation of the Judge, that it was a case in which the Judge thought there ought to be a prosecution. The question for the House to consider was whether this were consistent with the due administration of justice in any country. Many of the Members of the House were well acquainted with every part of judicial proceedings. Would it be endured for one day in England, that the Magistrate or the Judge should exercise the right of appointing the prosecutor or the prosecutor's attorney, and that he must be a person in his implicit confidence, and under his immediate control. No doubt where any abuse had crept in, arguments might be found to support and defend it. If the Judges had been accustomed in any Court to appoint the attorneys and counsel both for the plaintiff and defendant, it might be contended that this contributed greatly to the good of the proceedings—that the Judge was better acquainted than any other person with the character and talent of the attorneys and counsel in his own Court—that he would appoint none but those who were well qualified—and that any change would 942 deprive him of the proper control over the proceedings. He (Mr. Murray) had no doubt that if such a practice bad any where crept in, these and similar arguments would be used to defend it; but they could not weigh against the unalterable principles upon which all legal proceedings ought to take place in order to put the accused on an equal footing with the accuser, and give confidence to the country in the administration of justice. The only objection he had heard stated against this measure was, that it would increase the influence of the Crown; but it must be recollected that all the Sheriffs were appointed by the Crown. The only difference, therefore, was, whether the Crown appointed the Sheriffs, who appointed the procurator fiscals, or whether the Crown should appoint them directly; but there seemed at the present time no reason to apprehend that the influence of the Crown was increasing. On the contrary, it had been materially diminished. The House had been informed that upwards of 1,300 offices in the appointment of the Crown had been abolished, and no person could deny that the lights, privileges, and power of the people had been gradually augmented. To state the objection, that this would increase the influence of the Crown, was to resume an argument which, in former times, might be entitled to great weight, but which never could have less than in the present time. But if this measure had come before Parliament, even in those times when the influence of the Crown was most to be dreaded, he did not conceive it would operate against a change which was necessary to place the administration of justice on a footing which would put it beyond all suspicion; and remove from it a glaring and manifest defect which it appeared impossible for any fair or reasonable man to defend, and without which it could never be said to possess that entire confidence and veneration which was the best support of judicial establishments.