EXPENSES OF PROSECUTION BILL. (Hansard, 19 March 1851)

§ MR. HENLEY
said, no provision was made for the expenses of constables in cases where magistrates, instead of exercising a summary jurisdiction, sent the case for trial to the sessions. This would throw the expenses of constables on the parish or county instead of the Crown, which now paid them.

§ SIR G. GREY
said, it was intended that the words should include all the expenses that were now included in the certificate. If that was not the case, the words should be altered so as to make that quite clear.

§ MR. MULLINGS
said, that in some instances where the cases were not sent to the sessions, no expenses were allowed, which he thought a great hardship.

§ MR. DEEDES
wished to draw the attention of the right hon. Gentleman the Secretary of State for the Home Department to the question of allowing the expenses of prosecutions in cases of assault sent by a magistrate to the sessions. At present the court could not allow the expenses of prosecutions in such cases, but he saw no reason why the expenses should not be allowed in cases of aggravated assault, as well as in common felonies. If the right hon. Gentleman was not prepared to consider the question, he would himself bring up a clause with reference to it.

§ MR. WAKLEY
was very glad the hon. Gentleman had drawn attention to this matter. It was a very important one, for many reasons. The present state of the law held out a premium to persons to adopt what was called "hard swearing," in order to secure the committal of the defendant for trial, in which event, if the prosecutor were a poor man, he would be unable to proceed.

§ MR. E. B. DENISON
thought that the proposition of his hon. Friend the Member for East Kent ought not to be entertained without considerable caution, or it might open the door to very great expense. He would not say more than just to put the right hon. Gentleman upon his guard relative to the admission of the proposed clause.

§ SIR J. DUCKWORTH
could see no principle upon which the expenses of prosecuting aggravated assaults that came before the quarter-sessions should be withheld.

§ MR. BANKES
was of opinion that the presiding magistrate at assizes, and the justices at quarter-sessions, might safely be intrusted with a discretionary power in ordering the expenses. As the law at present stood, it was extremely hard upon the poor. He should cheerfully vote for such a clause as his hon. Friend the Member for East Kent had alluded to.

§ MR. W. MILES
thought that there would be a difficulty in dealing with the case as had been suggested by his hon. Friend; for it frequently happened that cases of trumpery assault were brought before a magistrate, who refused, perhaps, to have anything to do with them. The parties then might prefer an indictment before a grand jury, and, if the costs were in all cases to be allowed, that practice would no doubt greatly increase, and the county expenditure be much enhanced. At the same time he was far from denying that the present system was capable of great improvement, and he thought the subject well deserved the attention of the Government.

§ MR. DEEDES
considered it would be desirable to give the magistrates the power of granting a certificate in certain cases, stating that the parties were not entitled to proceed further. Such a provision would greatly control the expense of prosecutions.

§ SIR G. GREY
said, it had been suggested by the hon. Member for East Kent that there ought to be discretionary power 207 to order expenses in cases of misdemeanour, and also that where no committal took place the same discretionary power should be given. With regard to the first point, a discretionary power did exist in cases of felony and cases of misdemeanour, mentioned in the 7th Geo. IV., c. 64. There were no doubt other cases, not then foreseen, which ought to have been included in the same category, such as those in which parties might he tried and convicted of the minor offence. He doubted the propriety of giving the court the unlimited power in all cases of misdemeanour which it now possessed in cases of felony, and thought the better plan would be to specify the cases in which a discretionary power should be given. With regard to the other point, he thought the giving of a discretionary power in cases where no committal took place, would lead to a great expense, and to the bringing of charges which had no substantial foundation. There might, no doubt, be some eases in which hardship was occasioned under the present system; but he was inclined to think that the inconvenience was much less than it would he if the suggestions of hon. Gentlemen were adopted.

§ MR. AGLIONBY
had previously given a notice which, if carried, would have had the effect of giving the magistrate power to take the confessions of delinquents. By such a proceeding the cost of witnesses and general expenses of prosecutions would be materially avoided.

§ MR. WAKLEY
said, he did not propose that magistrates should have an unlimited power in all cases, but that power should be limited to particular cases. If magistrates were not to have discretionary power in such cases, then it was clear the right hon. Gentleman did not think magistrates completely fitted for their office.

§ MR. HENLEY
considered it was right that the Secretary of State should have power to fix the amount of expenses to be paid per diem; but unless precautions were taken in case a magistrate's certificate was not to be conclusive, the expenses might be enlarged indefinitely, and no means at hand to check abuse.

§ MR. STAFFORD
said, this was the most important clause of the whole Bill, and he rose to move its omission. He 208 considered that the onus probandi rested on those who brought forward this clause to show why a large and a respectable class of practitioners were to be disfranchised, and their emoluments interfered with in this summary way. The magistrates' clerks were general practitioners, respectable in their conduct, and much trusted by the gentry and others of the district in which they practised. He had received a letter setting forth the probable working of the clause so practically and fully, that he would trouble the House with a few extracts. [The hon. Member here read portions of the letter which had reference to associations for the prosecution of felons, showing what would be the consequences if the clause in question were allowed to stand.] The gentlemen who acted as the secretaries to those associations, and who always conducted the prosecutions of felons, were themselves generally the clerks to the justices, so that the alteration would evidently have the effect of depriving the country of the services of a most valuable class of professional gentlemen. Such a charge must involve a largo addition to the county rate in reimbursing them for the losses they may sustain. They were compelled to attend the assizes in order to prove confessions, &c.; and although they would not have the power to prosecute, they would have the privilege of defending prisoners. He confessed he could not see the reason of such a distinction. He therefore trusted the right hon. Gentleman would either consent to the withdrawal of the clause, or to such a modification of it as would meet the objections of a body of men who felt that not only their fair emoluments were interfered with, but an aspersion cast on their character and conduct which was wholly undeserved. He should move the expulsion of the clause, with the view of raising a discussion on its merits, or divide the Committee if no satisfactory reasons for its retention were assigned.

§ MR. BROTHERTON
thought it necessary that the clause should be either omitted or modified. In the borough he represented, the justices appointed a clerk to conduct the prosecutions, who was paid by I salary, the fees going into the borough fund; and this was a plan which had operated very beneficially. Where there were a number of magistrates' clerks competing; for the prosecutions, it caused a great increase of expense. He hoped a proviso would be added to the clause, exempting 209 from its operation those clerks to justices who were paid by salary, and had no interest in the prosecutions.

§ VISCOUNT EBRINGTON
thought the whole of this discussion afforded a fresh illustration of the difficulty of legislating for local exigencies by a central authority. He was assured that the operation of this clause would be very injurious in many places, and he hoped it would he withdrawn.

§ SIR G. STRICKLAND
said, the most important point was the exclusion from practice of certain professional men. He had received various complaints about this clause, and thought it required much modification.

§ MR. CHRISTOPHER
said, the object of the Bill was to diminish the expenses of prosecutions, and he supposed it was intended to infer that magistrates' clerks had an interest in bringing additional witnesses in order to increase their costs. But he believed the insertion of the clause now under consideration would produce the very effect which the right hon. Gentleman was desirous to prevent. He would just state to the House the result of the present system with respect to the cost of offences tried at Lincoln from the neighbourhood of Gainsborough. Out of 220 commitments, only three of the indictments preferred by the magistrates' clerk had been ignored by the grand jury. The expenses of each prosecution amounted to 4l. 4s., but the employment of another attorney would have been attended with an additional cost of 6l. 6s. He believed, generally speaking, that the magistrates' clerks were the most fit persons to perform this duty, and was of opinion that the proposed change would not at all diminish the expense.

§ MR. PACKE
, from long experience as a chairman of quarter-sessions was confident that if clerks of petty-sessions were prevented prosecuting, justice would not be done. The best men were selected to fill these offices; and the result would be that prosecutions would fall into the hands of men less well informed. He approved of the suggestion that the clerks of petty-session should be paid for the prosecutions by salary.

§ MR. COWAN
believed that the system of remunerating the procurators-fiscal in Scotland was working well, and it seemed to him that a similar system would work well if introduced in England, with regard to the services of magistrates' clerks.

§ SIR J. TROLLOPE
wished to know 210 what the accusation was against these gentlemen; for his part, he had had considerable experience as chairman of quarter-sessions, and he had never seen anything but a due economy on their part, and believed that public justice was advanced by the present system.

§ SIR G. GREY
said, that since this Bill had been before the House, he had received an immense number of letters on the subject, the greater part of which stated objections to this clause. He brought no charge against the gentlemen who acted as justices' clerks, comprising as that body did some of the most respectable practitioners in the law. He was surprised, therefore, to hear the hon. Member for North Northamptonshire say that this Bill was an imputation on the whole body of the clerks of justices, and that they were bound to oppose this clause, as, indeed, they were most effectually doing. No doubt there was a natural tendency in the human mind to avail itself of opportunities of obtaining money, and therefore there might be an increase of the expense when it put money into the pockets of the party incurring it. No doubt many cases had occurred in which the public bad been charged under the present practice with unnecessary expenses by clerks of justices conducting prosecutions. When the Municipal Corporations Act was beforet he House, a similar clause was inserted; but they did not hear that what was then proposed was casting any imputation on the gentlemen who acted as justices' clerks in the municipal boroughs, nor had he heard since of any inconvenience from the adoption of that clause, while at the same time it kept down the expense of prosecutions. He had given his best attention to this subject, and he thought the clause might be open to exceptions in its application to particular country districts; but his only object in it was to insert in the Bill a clause which might tend to promote economy without risking the loss of the proper means of conducting prosecutions and enforcing the criminal law. A suggestion had been thrown out on the second reading of the Bill, that if the clerks were to be paid by salaries, for which in the next clause there was an optional provision, those salaries should be calculated with reference not only to the duties they performed as magistrates' clerks, but also with reference to the duties that might be thrown on them in conducting prosecutions. With some modification, he thought that such a pro- 211 Vision might be beneficially adopted. He should propose that the clerks should not be at liberty to be concerned in any prosecution until the salaries were fixed, nor unless they were recommended by the justices to conduct such prosecution, and a justice should certify in writing that it was expedient that the clerk should conduct such prosecution. He was not, however, prepared to ask the House to assent to the clause as it stood, and would, therefore, postpone it for further consideration.

§ MR. DEEDES
suggested that the following difficulty might arise. By the proposed clause the committing magistrates were to have the power of recommending the costs of prosecution. A case might occur in which the clerk came to the sessions under the authority of the committing magistrate as a fit person to conduct the prosecution, and, on the other hand, the quarter-sessions might not consider the case to be one in which the expenses ought to be allowed.

§ MR. W. MILES
thought there would be a difficulty in allowing a single justice to certify for the prosecution. The power ought not to be vested in a single magistrate, but in the bench of petty-sessions.

§ MR. C. W. HOWARD
said, that it would be well if the right hon. Gentleman the Home Secretary determined the amount of fees payable to clerks of the peace. In his opinion the amount ought to be fixed.

§ MR. COLES
must, from all he had ever seen, speak in high terms of the magistrates' clerks, who were men of high standing and honourable character. He should beg to move the following Amendment to the clause:— To add to section 6, after the words, 'and to his rights in respect thereof,' the following words:—'and that the salary to be paid to any such clerk of the peace shall not be less than the average amount of the fees, profits, and emoluments payable to such clerk of the peace, in respect of his office, for the three years next preceding the passing of this Act.' He considered that if salaries were to be granted, they ought to be fixed according to the average emoluments and profits for the last three years. He hoped that the consideration of this section, however, would be deferred. The salaries when fixed, might be reconsidered at the end of three years, and an alteration made if it was thought necessary.

§ SIR G. GREY
said, the object of the 212 clause was to facilitate the commutation of fees now received by the clerks of the justices and of sessions. The measure had been pressed upon the consideration of the Government, and a Committee which sat upon the subject last year recommended a change of the nature now proposed. He thought the proposal of the hon. Member who last spoke, who wished to limit the amount of salary for a period of three years, subsequent to the time it was granted, might be objected to on this ground: at present the fees of the clerks of the peace could be diminished at the instance of the quarter-sessions; the rule upon this point had not been inoperative, and if the Amendment were agreed to, the effect would be that the clerk might be guaranteed a salary which would not be capable of any change for three years.

§ MR. COLES
would not press his Amendment.

§ MR. SPOONER
said, that in this clause a power was given of diminishing the salaries of clerks of the peace, but not of increasing them. In this respect the same powers should be given to magistrates of boroughs as had been given to justices of quarter-sessions.

§ SIR G. GREY
said, he thought no alteration was necessary, as the magistrates, if they acted wrongly, were subject to control on the part of the Secretary of State.

§ MR. HENLEY
thought that some means should be provided to prevent quarter-sessions deciding such matters without due notice, and that the Secretary of State should have the power to act as arbitrator between parties. A great part of the income of many clerks of the peace did not consist of fees in prosecutions, but of fixed charges for other business.

§ MR. SPOONER
urged that some means should be adopted to prevent the salaries of clerks to borough magistrates being reduced by the ratepayers. He saw no reason why the magistrates of boroughs should be treated differently from magistrates of counties, with regard to fixing the salaries of their clerks. He hoped the right hon. Baronet would promise to reconsider the subject, otherwise he should take the sense of the Committee upon it.

§ SIR G. GREY
said, there was this difference between the functions of justices of the peace in counties and in boroughs, that the former managed all the financial business of the counties, while the latter had nothing to do with the financial busi- 213 ness of boroughs, the control of which was vested in the town councils. To empower justices of the peace for boroughs to administer the financial affairs of those boroughs, would be to establish an entirely new principle; and, though he had no doubt they would be actuated by no improper motives in regulating the salaries of their officers, he thought it was not advisable to adopt the suggestion of the hon. Member for North Warwickshire. With regard to the suggestion of the hon. Member for Oxfordshire, he would take care to provide that due notice should he given of any intention to alter the emoluments of clerks of the peace, so that no precipitate resolution might be adopted. The hon. Gentleman also suggested that, in case of any dispute, the Secretary of State should act as arbitrator. If the Committee were willing to place that power in the hands of the Secretary of State, and if they did not think the exercise of such a power might deter courts of quarter-sessions and town councils from making recommendations, he would not object to the introduction of such a provision.

§ MR. MULLINGS
said, that the clerk of the peace generally acted as solicitor to the county, and his emoluments as solicitor were frequently double the amount of his fees as clerk of the peace. He was acquainted with a case where the fees of a clerk of the peace for a county were something less than 300l. a year; but his Bill as county solicitor was about 700l. a year. He conceived that the Bill, in its present form, would leave clerks of the peace whose salaries might be fixed, at liberty to act as county solicitors, which would give them considerable additional emoluments.

§ MR. SPOONER
moved, that after the words "governing body," the following words be inserted:—"and the justices of the peace in special sessions assembled." His object was, to give to justices of the peace in boroughs a concurrent power with the town councils in determining the amount of salary to be given to clerks of the peace.

§ SIR G. GREY
said, the proposal now made by the hon. Gentleman was very different from that which he understood him to suggest before. He understood now that the hon. Member did not mean to transfer the power of fixing the salaries of clerks of the peace from the town councils to the justices, but only to give the justices a Voice in the matter; and if the hon. Gen- 214 tleman would defer his Amendment until the bringing up of the report, he (Sir G. Grey) would, in the meantime, give the subject his consideration.

§ SIR J. TROLLOPE
wished to know whether it was intended that the salaries to be given to clerks of the peace should comprehend all costs to which counties were put incidental to the office of clerk of the peace?

§ SIR G. GREY
replied that the salaries were intended to be a commutation for all the fees received by the clerks of the peace in that character. The counties might, however, employ any solicitor they chose; and if the clerks of the peace were compensated in their salaries for the duties they performed as solicitors, there was nothing to prevent the business of county solicitor from being transferred to another person, in which case a double charge would be thrown upon the county rate. The magistrates might, of course, if they chose, make an arrangement with the clerk of the peace for conducting criminal prosecutions.

§ MR. MULLINGS
inquired whether the salaries would include all fees which were not strictly for professional business—whether, for instance, they would include registration fees?

§ SIR G. GREY
thought they ought to cover every duty which a clerk of the peace was, by statute or usage, compellable to perform as clerk of the peace.