HC Deb 20 February 1855 vol 136 cc1651-9

said, he would now beg to move for leave to bring in a Bill for the appointment of public prosecutors. He would not occupy the time of the House at present in stating its details, for he understood it was not the intention of Government to oppose the introduction of the measure. It was most important that every step in a criminal proceeding should be an act done by public authority, and as the law now stood, all that important part of the proceedings, which elapsed from the discovery that the crime had been committed until the prisoner was brought before a superior Judge to take his trial, was totally unprovided for. Even when the case against the prisoner was closed before the magistrates, and when the examinations and depositions were brought before a public officer, everything was left to chance. The Crown, indeed, was the nominal prosecutor, but the consequence was that we gave to policemen, to a class amongst whom were to be found some of the most hardened and profligate of mankind, and over whom the most incessant vigilance was requisite to prevent flagrant and cruel abuses of their authority, we gave to these men an unlimited power of pardon and connivance; and we intrusted them with an authority which in every country but England was regulated with as much anxiety as the functions of the Judge himself. In many cases it depended on the magistrate's clerks to prosecute; and there was evidence to show that they sometimes recommended committals, because they had a large interest in the fees they would gain by the prosecutions. He would not now enter into any details on the mode in which he proposed to remedy these evils; but when his measure was brought forward he should be obliged to any one who would suggest improvement. This matter involved no party interest, but that in which they were all interested, the pure administration of justice. He had endeavoured, by one clause, to provide against an evil which every one who attended the courts of justice must have witnessed with regret. He proposed that prisoners should have the power of calling witnesses (except witnesses to character) at the public expense, provided the Judge would certify that such witnesses were necessary for the defence. In his opinion, the administration of justice ought to provide not only for the conviction of the guilty, but for the defence of the innocent.


said, it was very far from his intention to offer the slightest opposition to the introduction of this Bill; but when the hon. and learned Member introduced a Bill upon the subject last Session, that Bill appeared to almost every lawyer in the House to be an almost hopeless Bill; a more crude specimen of legislation he never saw. At the same time, he quite agreed with the hon. and learned Member that the subject was highly important, and if any scheme could be devised whereby a public prosecutor could be appointed, consistently with a due regard to the expense, and a due consideration of the difficulty which must be occasioned with so large an amount of patronage, he was ready to admit that the appointment of a public prosecutor was most desirable. He had offered his co-operation to the hon. and learned Member, and they had met to discuss the subject, when the hon. and learned Member said he could suggest nothing better than this. It assuredly was a subject of the greatest difficulty. The whole of our existing administration of justice was entirely distinct from the existence of a public prosecutor, and almost inconsistent with it; it would be entirely new and foreign to the present system, although he agreed that it might possibly be accomplished, yet it was a matter of great difficulty. Having been anxious to see whether any scheme could be devised, he (the Attorney General) applied to the very highest authority, the Lord Chief Justice of the Queen's Bench, who bad, upon more than one occasion, declared himself in favour of appointing a public prosecutor. Now, what was the answer of that learned Chief Justice? It was to this effect, that he himself, during the time he was Attorney General, had again and again directed his attention to the subject, and that, although he was most anxious to devise some scheme, he had failed to devise any scheme that appeared to him to be satisfactory. His (the Attorney General's) own opinion was, that the present moment was not the precise time for legislation on the subject. In the first place, what was to be done, for instance, with the magistrates' clerks? Were they to be introduced into the proposed new system, or were they to be deprived altogether of any share in the conduct of prosecutions? He agreed that it would be much better if they were limited to the functions of magistrates' clerks, and not allowed to take any part in prosecutions; but then, on the other hand, we should deprive them of considerable emoluments, and then would come the question of compensation. He therefore thought the first step would be to see what was the part the magistrates' clerks took in prosecutions, and to see whether the amount of expense that would be incurred in providing compensation to them would not make it desirable rather to introduce them into the new system proposed than to get rid of them. He had moved for certain returns on the subject, which were not yet produced. If a body of agents appointed expressly for the conduct of criminal prosecutions were introduced, as the hon. and learned Gentleman proposed, an immense expenditure would at once be created; and the system could not be made efficient without a great number of such agents. It was not merely in the conduct of the case in court, but the great advantage anticipated would be in the previous preparation of the case, so as to make it fit for a jury; and if agents were employed to collect evidence, and get up the cases, such a staff of them would be needed as would entail a very great expense upon the country. Then, what should we do with the patronage thus created? Should all that patronage go to the Government? If it were to be given to the Judges, there were many objections to that, for then its exercise would be under no Parliamentary responsibility, and it might become, like other patronage administered in the same way, a matter of nepotism and favouritism; and he thought it would also tend to create subserviency and a want of independence in the bar. If, on the other hand, it were given to the Government, there were serious objections also to that, which, he thought, we were not yet prepared to deal with. At the same time, if his hon. and learned Friend could see the way to devise a scheme that would be satisfactory to the House and to the country, he (the Attorney General) should be glad to see it introduced, and, if it were a scheme fit for adoption, to give it such assistance as lay in his power.


said, if the Bill intended to be introduced were similar to the one brought in by the hon. and learned Gentleman last year, he should be prepared to oppose it, because that Bill would have had the effect of introducing a most objectionable system; a system which had been adopted in Ireland, and which had signally failed in securing public confidence in the administration of criminal justice in that country. To illustrate the operation of the system pursued in Ireland, and that which was at present the law in England, he would mention the case of the disturbances at the elections at Stockport in this country, and at Ennis in Ireland. A riot occurred at Stockport which resulted in loss of life; the parties prosecuting selected their own counsel, and conducted the matter in their own way. The accused were tried and justice was administered so satisfactorily that nobody heard a word against it. Now, at Ennis there was a serious riot in which some soldiers were involved. The Crown Solicitor undertook the defence before the coroner, and, after a verdict had been obtained, application was made to the Court of Queen's Bench to quash the inquisition. That application was unsuccessful. A change of Government then took place. Another Attorney General and another Solicitor General came into office, and they undertook the prosecution of the same parties, and also of a Catholic priest who was charged with having instigated the riot. What ultimately was the effect of these proceedings? Why, both the priest and the soldiers escaped prosecution altogether, both sets of proceedings being abandoned, each as a set off to the other. Another illustration of the system was the well-known case of Mr. Carden. That person was committed for a most unmanly assault upon Miss Arbuthnot, and although he was an exterminator of his tenantry, and a most unpopular individual among the peasantry in Ireland, having obtained the sobriquet of the "Woodcock,". from having been so often shot at, yet, when his acquittal of the felonious part of the charge was announced, the crowded court in Tipperary gave him a vociferous cheer, because the public prosecution instituted against him had the effect of making him appear in the eyes of the spectators as a person who was persecuted by the Government. if the assault had taken place in his native county, Lincolnshire, and the parties had been left to take their own course, no such public sympathy would have been enlisted in his favour. He should be glad to see this subject investigated by a Select Committee; for really, at present, the term "public prosecutor" was very little understood, and he believed that in every country where such a system was introduced, confidence in the proper administration of justice was destroyed. ["No, no!"] Why, was there any country in the world in which the public had such confidence in the administration of justice as in England, in which no such system existed? In France the public prosecutor was interested in the conviction of the party charged, and, instead of sending in a simple indictment, he put before the tribunal an elaborate argument against the prisoner. He apprehended, if we were to institute a similar officer, we should fail to insure for him the confidence of the public.


said, he had taken up this subject himself many years ago, but he found it so beset with difficulties that he could not go on. His counsel was that his hon. and learned Friend (Mr. J. G. Phillimore) should precede the introduction of the Bill with a clear investigation of the subject by a Select Committee. That must be the real basis of any legislation on the subject, and he apprehended the House would never consent to pass a measure of this importance unless the subject was previously referred to a Select Committee, who should have the power of examining witnesses, and should thoroughly consider the important questions involved in it, through which he was willing to confess he did not, as yet, see his way at all. He did not, however, see all the objections which the hon. and learned Attorney General and the hon. Member for Wexford (Mr. M'Mahon) had stated, because in Scotland there was a system of public prosecutions, and he was not aware that the confidence of the public in the administration of justice was at all shaken by its operation.


said, when a similar Bill to the present was introduced last year he gave it his support, and he certainly, on that occasion, understood the hon. and learned Attorney General to say that he would communicate on the subject with the Lord Advocate of Scotland and the Solicitor General for Ireland, and, if the principle of the measure met with the concurrence of those learned Gentlemen, it would be satisfactory to him. As far as his recollection went, the principle of that Bill was approved, but great difficulty, he was aware, was experienced in respect to the details. It was the general opinion, that the administration of public justice ought not to be left in the hand of private individuals, who might be actuated by personal motives, and he certainly thought the machinery now existing in Ireland might, with some improvements adapted to meet the requirements of this country, form the basis of something like a perfect system. The hon. Member for Wexford had not correctly stated the cases he had given; for, so far from Mr. Carden being acquitted, he was convicted. [Mr. M'MAHON: Not of the felony.] That person was charged with two offences—felony and misdemeanor, and though it was not thought proper to press the case of felony, he was convicted of the misdemeanor, and was now in gaol. Then. again, the hon. Member was mistaken with respect to the inquisition at Ennis, and as to its having anything to do with the prosecution of the soldiers. He (Mr. Napier) was of opinion that when they were using the name of the Crown to bring parties to public justice for a breach of the laws, the prosecution ought to be intrusted to a public officer responsible to his Sovereign and to Parliament; for nothing could be worse than to leave the prosecution of criminals in the hands of private individuals, who might, under certain circumstances, keep back the evidence or compromise the matter. Such a system was unsound, and it would be a great public advantage if it were put an end to. In all cases of public prosecution, great care should be taken in previous investigations before the matter was brought into Court, so that it might be presented to the jury in the most per fect shape possible. For this reason, he would get rid of inquiries before coroners' juries, one of which, in the time of the Irish famine, brought in a verdict of wilful murder against Lord John Russell and the rest of the Cabinet Ministers. To have a public prosecutor—say, the Attorney General—at the head of a proper staff, would, he conceived, be a great advantage; and he advised the hon. and learned Gentleman (Mr. J. G. Phillimore) to go on with his Bill, and try to get it passed in a perfect shape before the end of the Session.


said, be fully concurred in what had just fallen from the right hon. and learned Gentleman. In Ireland there was a system long established, under which, the moment an offence was discovered to have been committed, there was some public officer who had it in charge, and whose duty it was, not only to prepare the evidence against the prisoner, but also to secure the attendance of persons who could give evidence in his favour. That system had given great satisfaction, and he hoped the measure now proposed would be persevered with, and he should be glad to give all his aid towards carrying it to a successful issue.


said, he could not concur with the hon. and learned Attorney General as to the extreme difficulty of establishing a system of public prosecutors. There was no difficulty about it in Ireland, where the earlier stages of criminal proceedings were much in the hands of public officers, who held a position like that of stipendiary magistrates in this country, and whose duty was to sift and investigate the evidence before it assumed the form of sworn informations, and it was not until afterwards that the matter came into the hands of counsel, who acted as public prosecutors on circuit, and who had a double duty, not only to punish the guilty, but to take care that no innocent person should suffer punishment.


said, he thought that the proposed Bill was so important that the hon. and learned proposer of it would exercise a sound discretion in allowing it to be investigated before a Select Committee. It was not his intention to offer any opposition to the Bill; but he wished to notice the strong language used by the hon. and learned proposer of the measure with reference to the police of the country. A more excellent or worthy body of men did not exist than the police of the county he had the honour to represent—Leicestershire.


said, he must explain that what he said was that there were to be found among the class of police some of the most hardened characters; but he did not speak so generally of the police.


said, that that portion of the police with which he was acquainted—namely, the police of the country of Leicester—were free from such a charge. Since its establishment crime had diminished one-half in the county; and the police in question had the confidence and respect of every individual in the county.


said, he thought his hon. and learned Friend the Attorney General had had great injustice done to him. It bad been complained that that hon. and learned Member had held out a promise to the hon. and learned Member for Leominster (Mr. J. G. Phillimore) to consider the subject and frame a proper measure. So far as the Attorney General was concerned. he (Mr. Phinn) knew that he had fulfilled his promise as far as possible. His hon. and learned Friend the Attorney General had consulted the Lord Chief Justice and gentlemen of great experience, all of whom were anxious, if practicable, to form a measure capable of being put into operation. It was, however, very easy to enunciate sweeping principles, and to lay down rules in which all concurred. Every one concurred in the necessity of having a public prosecutor, but it was very difficult to engraft a new system of administration upon an old and complicated system. There was a strong feeling against magistrates' clerks being paid by fees, and it had been proposed to pay them by salaries, and thus make them independent of cases which now it was their interest to get sent for trial, and to make them in the first instance public prosecutors. With that view he (Mr. Phinn) had moved for certain returns showing the fees that those clerks had received, and he regretted that those returns had not yet been laid before the House, as they would have afforded considerable information in connection with this particular subject. There was another question intimately connected with this—the grand jury. Was that to be permitted to exist together with the public prosecutor? Another question was—in whom would the patronage vest? He had a very strong objection to the patronage of the bar being vested in the Judges, as tending to render the bar subservient to the latter. At present the great school for young men at the bar was at sessions and assizes, where the prosecutions were dispersed among them, but the appointment of one or two Crown prosecutors to travel from place to place would destroy that source of future recorders. Without committing himself to any of these particulars, he thought it would be most desirable to adopt the suggestion of the hon. Member for Dumfries (Mr. Ewart), and send the matter to a Select Committee.


in reply, said, he thought the speech of the hon. and learned Attorney General was more worthy of the days of Lord Eldon than of the representative of a Liberal Administration. The hon. and learned Gentleman had, no doubt, unintentionally deceived him last year, and the question was quite as ripe for consideration as it would be twenty years hence. As to the measure he had proposed being a crude piece of legislation, all he could say was, that the hon. and learned Gentleman had not suggested anything better.

Leave given; Bill ordered to be brought in by Mr. JOHN GEORGE PHILLIMORE and Mr. WATSON.

Bill read 1o.