HC Deb 09 May 1866 vol 183 cc644-54

Order for Second Reading read.


in moving the second reading of this Bill, said, that the measure was in itself small and unpretending, but it had this merit, that it would, if passed, tend to maintain the dignity of the law, and render pure the stream of justice. The clerks to magistrates stood in a very anomalous position. The whole question of the advisers to our unpaid magistracy required consideration fifty years ago; the rural magistracy were few and far between, their butlers were generally their clerks, and their only legal advisers "Burns Justice;" the increase of population and the consequent increase of crime had altered this, but the position of the clerks had not kept pace with the requirements of the times. The clerk to the magistrates was charged with very responsible duties, he was the legal adviser of the justices to whom he acted, and yet he had no freehold in his office, and he was liable to be discharged at the pleasure or caprice of the magistrates. Now, the House had imposed on these clerks very important duties. They were compelled to make Returns to the Home Office under no less than seventeen statutes, some of which were of a very important nature. The position which he held was this—that these clerks should be paid by salary; that they be attorneys of a certain standing, should not be removable from their office except for misbehaviour, and that they should have no direct or indirect pecuniary inducement to recommend commitments to the justices whom it was their duty to advise. He was aware that there was an organized opposition to his proposal, the justices clerks had, like other trades, their union, and had determined to oppose his Bill; they had sent a form of petition to all the Petty Sessional divisions, 433 in number, but only thirty-one petitions had been presented against his Bill; this spasmotic action might keep the matter in its present position a little longer, but there was a strong feeling entertained by the ratepayers that the pre- gent system of unpaid clerks, with the inducement which they had to recommend commitments, greatly increased litigation, and that they were thereby made the sufferers. All fees taken by magistrates were more or less a tax on the working classes of the country. The hon. Member referred to the evidence taken by the Royal Commission which sat in 1845, to inquire into the state of the criminal law in support of his view that the prosecution by magistrates' clerks was a highly indecorous proceeding which led to frivolous prosecutions and gave rise to the obvious remark that they had a direct interest in advising commitments. He also referred to the evidence given before the Public Prosecutions Committee. Amongst the witnesses was the Lord Chief Justice, who said he was of opinion that the clerks to the justices could be made useful agents to conduct public prosecutions; but unless the clerks were put on salaries that plan would not do. Lord Campbell said it was of the last importance that the magistrates' clerk should have no interest in the prosecution to bias his mind, and no advantage, directly or indirectly, in the case in which he gave his advice. He also read letters from gentlemen holding official position in England and Wales, in favour of his proposal. On the passing of the Municipal Act, it was provided that the clerks to magistrates in boroughs should not prosecute any person sent to gaol by the borough magistrates. It seemed an anomaly that a clerk to borough magistrates, and a clerk to county magistrates, should live side by side of each other in a town that one could prosecute, the other could not. Was the integrity of the one greater than that of the other? lie had inquired in the larger boroughs, and found that no practical in convenience had arisen from that enact ment. The town clerk of Birmingham said that the prohibition of justices' clerks conducting prosecutions in the borough had not caused any inconvenience whatever. The town clerk of Leeds stated that no inconvenience had arisen in that borough from the clerks of justices being prohibited from conducting prosecutions of prisoners committed for trial by the borough magistrates. They were not, then, to suppose that the prohibition would cause any inconvenience in counties. No person should be personally interested in a matter that came judicially before him. There was a provision in the Coroners' Act to prevent coroners from acting as solicitors in any case brought before them in their capacity of coroner. If the Bill should go into Committee he would endeavour to remedy some other grievances connected with the magistrates' clerks. On many occasions the magistrates' clerks, either by themselves or their partners, actually practised before the bench to which they acted as clerks; and every one must admit that was a most indecorous proceeding. It was exceedingly improper that the magistrates' clerks should, either by their partners or in person, defend persons committed for trial by the magistrates under whom they acted. This measure was only a step in the right direction; but he hoped that before long another step would be taken, and the recommendation of the Committee on public prosecutions would bo carried out. He hoped they should have as magistrates' clerks gentlemen of legal standing, and that they should have public prosecutors to conduct the prosecutions intrusted to them fairly and impartially.

Motion made, and Question proposed, "That the Bill be now read a second time"—(Mr. Colvile.)


moved that the Bill be read a second time this day six months. The only allegation in the preamble was that inasmuch as by the 5 & 6 Will. IV. c. 76 it was enacted that it should not be lawful for the clerk to any justice for any borough in England or Wales to be employed in the prosecution of any offender committed for trial by the justices to whom he acted as clerk, it was expedient that the same restriction should be imposed on clerks to justices in counties. But he would observe that no analogy could be drawn between the position of clerks to borough justices and clerks to county justices. The position of the former was regulated by the Municipal Corporations Act, which statute enacted that they should not prosecute prisoners committed by their own bench; but it should be borne in mind that that Act was passed during a time of great excitement, and it was then thought desirable to take steps to prevent political bias from being imported into prosecutions. Two Committees had sat in reference to this matter, and the witnesses all agreed that the magistrates' clerks were the most efficient persons to carry on prosecutions; and the danger was that if they were prevented from carrying on prosecutions the business would fall into the hands of a low class of attorneys, and the cases would be inefficiently put before the Courts, and facilities would arise for compromising felonies, and for committing other irregularities. According to the evidence given before the Commission, only one or two complaints a year had been made to the Treasury with reference to prosecutions conducted by magistrates' clerks. Those complaints generally came from rival attorneys, who probably felt some jealousy in the matter, and he believed the present proposal originated in the same quarter and from the same feeling. The hon. Member had talked of an organization of justices' clerks, but he had heard of no such organization, nor had he received any petition or communication, except a letter from a gentleman in Devonshire, who objected to the Bill as likely to be injurious to the profession and to the public at large. The present scale of fees was so low as to offer no inducement to respectable attorneys to undertake prosecutions, and though magistrates' clerks, from their familiarity with the work and the number of cases conducted by them, made them to some extent remunerative, there was no ground whatever for the imputation that for the sake of so small an emolument they would advise magistrates to commit persons for trial improperly. Indeed, summary convictions were more remunerative than committals. The justices, moreover, so far from objecting to the practice, actually encouraged it, as otherwise prosecutions would fall into the hands of an inferior class of attorneys, and extortion might be practised, and the ends of justice frustrated. Cases occasionally occurred of persons being reprehended for touting for prosecutions, and this Bill, if passed, would render such cases very much more frequent. Some of the witnesses examined in 1855 suggested that justices' clerks should be paid by salary instead of by fees, which course had been rendered optional by a subsequent Act; but not one of them questioned the propriety of justices' clerks conducting prosecutions, and the general tone of the report was that any scheme which did not provide for the efficient conduct of prosecutions must necessarily be defective. Believing, therefore, that to adopt this restrictive measure without making other provision for the proper conduct of prosecutions would be attended with very injurious results, he begged to move that the Bill be read a second time that day six months.


said, it seemed to him that the passing of this Bill would tend very much to increase the evils which the hon. Member was anxious to prevent, and would lead in many instances to extreme inconvenience, and even to the miscarriage of justice. Extreme accuracy being required in criminal cases, it was very important that prosecutions should be prepared by attorneys of the best practical knowledge and experience, and clerks to justices had, as a general rule, these advantages more than other attorneys. Again, it was of great consequence that the depositions should be accurate and full. Justices were not obliged to do more than was necessary to justify their committing a prisoner, and justices' clerks, if forbidden to prosecute, would have no interest in taking down more than barely enough to justify a committal; whereas now they had a direct interest in making the case as complete as possible, otherwise they would incur the censure of their counsel, and possibly of the court also. It was also very useful for the attorney to become acquainted with the demeanour of the witnesses, and a Queen's Counsel of great experience in criminal cases had related to him a case of murder, in which there would have undoubtedly been a failure of justice, had not the clerk judged from the demeanour of one of the principal witnesses before the justice that he was not to be relied upon, and been prepared with additional evidence accordingly. In important cases it was often necessary that justices' clerks should be present to give assistance and information to counsel, and if forbidden to prosecute, and yet obliged to be present, additional costs would be incurred. The costs allowed in prosecutions being very small, respectable attorneys would rarely undertake them; but justices' clerks having several cases, it was worth their while to do so, especially as they were able to copy the depositions on their briefs, instead of paying for copies. Mr. Greaves, who was second, perhaps, to none as an authority in such matters, and who authorized him to say that he disapproved this Bill, recommended that justices should ask the prosecutor if he intended to employ an attorney, and if not, should themselves appoint their clerk if he were an attorney; for, after forty years' experience, he was satisfied that justices' clerks conducted prosecutions quite as well as they could be expected to do, considering the low scale of allowances, and he had, as a general rule, found less desire to press a case unduly by them than by independent attorneys. It was true that this practice was forbidden in boroughs, but in large boroughs, such as Leeds, which had been mentioned by the hon. Member, attorneys of high standing were appointed to act as public prosecutors, and to do exactly what magistrates' clerks did in counties. There was less necessity, however, in boroughs, because the cases being tried there the attorneys were at home, instead of going for two or three days together to a distant sessions or assize town; but, looking at results, were there not far more cases in boroughs than in counties of scandalous practices by low attorneys competing and bargaining with policemen for prosecutions, and even such unseemly occurrences as two counsel rising to conduct the same prosecution? He should rather prefer altering the law with respect to boroughs than assimilating that of counties to it. If cases were unduly committed it was the fault rather of the justices than of their clerk, and it was not a practice likely to prevail to any extent, as it seldom failed to call forth strong observations from the prisoner's counsel and from the court itself. It had been said that the clerk should be paid by salary, but it should be remembered that this did not touch the point, because the conducting prosecutions was beyond his duty as clerk for which the salary would be received. On these grounds he thought this measure uncalled for and likely to be mischievous, and he therefore seconded the Amendment.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Mr. Goldney.)


regretted that he could not on this, as on most occasions, concur with his hon. Friend and Colleague, who had moved the second reading of the Bill. His experience convinced him that the present system was the best that could be adopted under present circumstances. At the same time he should quite approve the payment of justices' clerks by salary, and of their undertaking prosecutions as a part of their duty; but this Bill seemed to him to begin at the wrong end. It had been his duty as Chairman of County Sessions to endeavour to ascertain the opinion of the magistrates concerning this Bill, and there was almost an unanimous opinion that the Bill would do more harm than good. The same opinion, he was informed, prevailed in Nottinghamshire. They said that in some districts there were no respectable attorneys willing to conduct prosecutions, the remuneration being so small, and the Bill would, therefore, throw the work into the hands of an inferior class of practitioners. In boroughs the case was very different, as there wore plenty of qualified attorneys ready to prosecute. He did not wish to take up the cudgels for the magistrates' clerks, but he thought it right that he should notice one matter, and that was with regard to the depositions, and he must say that there were very few cases that had come under his notice during nine or ten years experience of the subject in which it appeared on the face of the depositions that there ought not to have been a committal, and though prisoners were frequently acquitted, this arose from witnesses varying in their evidence and other causes. The Bill, he was persuaded, would make matters worse rather than better, and for these reasons he should vote for the Amendment.


said, he had acted as a Chairman of Quarter Sessions for upwards of thirty years, and he thought no case had been made out for the Bill. Had a foreigner listened to the speech of the hon. Gentleman (Mr. Colvile) he would have inferred that the magistrates were not present at committals, or had no voice in the matter, and that the prisoner was committed by the clerk. Now he never sat on the bench when the magistrates did not act on their own judgment, uninfluenced by the clerk. He was sorry the hon. Baronet the Secretary of State for the Home Department was not present to defend the magistrates from the reflections which had been passed on them. The clerks in his own county were paid by salary under the permissive law passed a few years ago, and he hoped and believed this system would be more extensively adopted. For he quite concurred in the opinion that it was better to avoid the possibility of suspicion, that the clerk advised the committal in order that he might obtain the fees for prosecuting. He did not, however, think a sufficient case had been made out for the Bill, and he should therefore vote against the second reading.


said, that for more than a quarter of a century he occupied the position of one of the clerks of the peace to one of the Ridings of Yorkshire, and he thought, therefore, he might claim to have had some experience in this matter. When examined before the Commission on Public Prosecutions in 1855, he expressed an opinion in favour of justices being authorized to direct their clerks to see to the due prosecution of all cases sent to the sessions for trial, and he objected to the appointment of district agents at considerable salaries as unnecessary, the justices' clerks, in most instances, in the North of England being the principal solicitors in the towns where the Petty Sessions were held, and among the most respectable men in the profession. The ten years that had since elapsed had only strengthened these views, and he was convinced that the Bill, instead of improving the administration of justice, would seriously impair it. As to the pecuniary interest of justices' clerks in prosecutions, he need only remark that the sum allowed for the preparation of the brief and for a journey, sometimes of fifty miles, to the place where the trial took place, was only two guineas.


as a member of the Commission of 1855, remarked that the evidence of the Lord Chief Justice was irrelevant to the question now before the House, his examination having been confined to the appointment of public prosecutors. While admitting the right of the hon. Gentleman to bring forward this proposal, he must say that it was inconvenient to deal with matters of legal procedure in this patchwork manner; and if an alteration were required in the administration of the law, he would rather see a Bill introduced by the responsible advisers of the Crown. In his eighteen years' experience as Chairman of Quarter Sessions, he could hardly call to mind a case in which improper motives could have actuated the committal, and so far from its being the vice of the age to prosecute people improperly, he believed that for one person who was improperly convicted there were 999 who were improperly acquitted, or, he should rather say, who were not brought under the cognizance of justice at all. The question of the appointment of a public prosecutor could scarcely be discussed on this occasion; but he was persuaded that the Bill would make matters worse in every respect, and he hoped that after the expression of opinion that had taken place, the hon. Member would not put the House to the trouble of a division.


said, that as it had been stated that certain members of the Bar were in favour of the Bill, his opinion as a barrister, who had practised for a great many years at quarter sessions, might not be unacceptable. He should certainly vote against the second reading of the Bill, for it provided no substitute whatever for that which, though it might be open to some abuses, was the only machinery that secured prosecutions in proper cases. Petty sessions being scattered all over the country, in places where no legal practitioners resided, it was evident that if there were not some person authorized to undertake the duty, there would, in a multitude of cases, be no one to conduct the prosecution until the case came on at the quarter sessions, and there would be seen a scandal which was even now occasionally witnessed— policemen, or attorneys with no knowledge of the case, scrambling for the prosecutor, and endeavouring to get the job into their own hands. The practice in boroughs, moreover, could not be cited as a model, for within his own knowledge persons had been appointed to conduct prosecutions who, though otherwise efficient, had in consequence of their entire ignorance of the case up to that moment committed mistakes, the ends of justice being thereby defeated. No substitute was proposed in this Bill for the present system, and believing that justice would in many cases be defeated were that system to be abolished without any other provision taking its place, he could not support the measure.


said, as no hon. Gentleman had said a word in favour of the Bill, except the hon. Mover, he hoped he should be allowed to offer one or two remarks. He thought that the present system of prosecutions was most defective, and that it was kept up for the mere sake of economy. It appeared to him that the magistrates' clerk—who was the person employed to prepare the depositions—was not the proper person to conduct the prosecution. The hon. and learned Gentleman the Member for Tiverton appeared to think that if the conduct of these prosecutions were not left in the hands of the magistrates' clerk there would be a failure of justice. It, however, occurred to him (Mr. Neate), that there was probably a failure of justice in some cases in consequence of the prosecutions being left in their hands. It was quite clear that if a scale of allowance was fixed in the different counties, which would give a sufficient remuneration, respectable attorneys would be found to conduct the prosecutions. There was no doubt that the whole system required revision. He, how- ever, hoped that his hon. Friend would not press his measure to a division.


said, he had listened with great attention to the remarks of the Member for Oxford to see whether he had any arguments to bring forward in support of the Bill, and he must say that he had not heard one single thing in its favour. The subject was to be looked at from two aspects—first, would it forward the cause of justice; and secondly, had the clerks of the justices recommended prosecutions for the sake of the fees? Neither of those propositions had been proved. It was impossible that magistrates would allow a prosecution to go on improperly in order that the clerk might get the fees, unless they were fools not to see it, or knaves sufficient to allow it, and he could not believe that the magistrates sitting in petty sessions were either the one or the other. He had been waiting to hear some case of corruption of this kind cited in support of the Bill, but nothing of the kind had been brought forward. During the great number of years he had had experience as a magistrate he did not recollect an instance of the sort coming within his knowledge. He had, however, known charges which had not been brought forward by magistrates' clerks, and that never ought to have come before the quarter sessions, preferred by others; and in every instance that they had come before him he had disallowed the expenses except those witnesses who had been bound over, and for whom he had felt some compassion. He found as a general rule that magistrates' clerks got up their cases better than other people, and if those gentlemen were prevented from prosecuting, none of the miserable cases which came before quarter sessions would have any person whose duty it would be to look after them, and the result would be that the unfortunate man who had been robbed would come gaping into court, and the chairman would have to grope through perhaps thirty or forty depositions, and to take his chance of sifting out the truth. Under such circumstances he should certainly oppose the second reading of the Bill.


said, allusion had been made to the absence of the Home Secretary during the discussion, but he could assure the House that his absence was inevitable, and that, if present, the right hon. Gentleman would have been ready to bear his testimony to the integrity and honesty which the county magistrates had always displayed in the discharge of their duties. It would be impossible for the Government to support the second reading of the Bill, and he hoped that after the expression of the feeling of the House, that the hon. and learned Gentleman who moved the second reading of the Bill would be induced to withdraw the Motion. The opinion of the House was so directly opposed to the Bill that he did not consider it necessary for him on the part of the Government to enter into a consideration of its merits.


said, after the discussion which had taken place he would not press the Bill. He was quite satisfied with the result of the debate, and the knowledge he had obtained, that the House was in favour of paying clerks by salary. The Member for Chippenham had stated that the witnesses in the Committee on Public Prosecutions had declared that it was desirable that justices' clerks should prosecute. He would find this nowhere proposed, except when accompanied with the condition that the clerks should be paid by salary. If this was done, he himself would not object to such a proposal.

Question, "That the word 'now' stand part of the Question," put, and negatived.

Words added.

Main Question, as amended, put, and agreed to.

Bill put off for six months.