HC Deb 10 May 1870 vol 201 cc465-80

said, he rose to move for a Select Committee to inquire into the present system of conducting public prosecutions in Scotland, with the view of amending that system if necessary, and of extending to other parts of the United Kingdom the institution of Public Prosecutors. Since he had placed this Notice upon the Paper, there had been a considerable change in the aspect of the question. At that time he proposed not only to bring about a reform in the law of Scotland, but to afford valuable information to those who sought to institute public prosecutors in England and Ireland. Since then, however, a Bill on the subject had been introduced, had been read a second time without a Division, and referred to a Select Committee, and had a very fair prospect of becoming law this Session. That rendered his task much simpler, for his object was not to extol the system of public prosecutors, which had been established in Scotland for centuries, but to point out certain reforms which might advantageously be made, to render it more in harmony with the present state of opinion, and thus restore public confidence in the system which, in his opinion, still retained too much of the spirit of the times in which it was first instituted. The time seemed appropriate for establishing a similarity or identity of the law in the two kingdoms in this very important particular. If the Committee were granted he should wish to limit the inquiry strictly to the investigation of this particular case of prosecutors appointed and paid by the public to investigate cases on behalf of the Crown. There had been a Royal Commission to inquire into the legal procedure and practice of Scotland; the Commission had issued a voluminous Report, from which this question had not been omitted; but amid the mass of subjects to which their attention had been directed it had unavoidably occupied a position not adequate to its importance. But if a Committee were appointed to inquire into this subject alone they would probably take such evidence and come to such conclusions as would lead to a substantial improvement in the law. The faults in the present system to which he would call the attention of the House related in a great measure to the method of appointment and payment of those public officers, but also, what was still more important, to the manner in which their proceedings and preliminary inquiries were conducted, the secret system under which they acted, and the arbitrary and irresponsible powers with which the public prosecutors were invested. It would be quite out of place to enter upon an account of the numerous and important functions with which the Office of Lord Advocate, now so worthily filled, had been by degrees intrusted. The original foundation of that officer as public prosecutor dated, he believed, from the middle of the 16th century. In its origin it appeared to have been instituted for purely fiscal purposes, to secure to the Crown its claims upon the estates of convicted criminals. The Lord Advocate had under him a powerful staff of subordinates, headed b}' the Solicitor General and four Advocates Depute, appointed by the Crown, and going out with the Government of the day. There were also local public prosecutors called Procurators Fiscal, appointed by the Sheriff or local Judge, and holding office as long as he did. It was their duty to investigate and report cases of crime, and to bring the accused to trial. To the method of appointment by local officials, he had various objections to urge, and he had the highest authority in support of his views. In a letter written in 1833, Lord Cockburn, then Solicitor General of Scotland, said, he had long been clear that Procurators Fiscal should be named by the Crown, and that the present system of letting them be named by the Sheriffs was peculiarly unsatisfactory, even when they appointed right men—and they often appointed wrong men. He (Lord Cockburn) would have it distinctly understood that this was not a political office, and the holders ought not to be appointed or removed on party considerations. The Lord Advocate possessed privileges and powers as a public prosecutor which hardly appeared in keeping with the general limits prescribed by the Constitution to Executive officers. He could delegate those powers to whom he pleased, and he was not liable to give security or pay damages for false imprisonment, or for the failure of his at- tempts to prosecute. He could only be made liable to damages where he was suspected of having acted maliciously and beyond his duty. The total expenses of criminal proceedings in Scotland were £75,000 a year, of which sum the salaries of the Procurators Fiscal amounted to about one-third; and those salaries were supposed to cover all cases actually reported or brought to trial. Although the Procurators Fiscal received on the average salaries equal in amount to those of local Judges, they were entitled also to pursue their private practice; and while their salaries varied from £2,000 to £50, they, as a rule, made considerable incomes by private practice as lawyers, factors, and in various other ways. Now he (Sir David Wedderburn) thought that when a Judge was required to devote the whole of his time and talents to the public service in consideration of his salary, the public prosecutor, whose social position was less dignified, might very well be required to do so also. Various abuses were liable to arise from the present system. Thus, if a Procurator Fiscal were called on in his public capacity to prosecute one of his own clients—say, a powerful company or an influential individual—it could scarcely be supposed that he would as impartially and fearlessly discharge his public duties as if he were in a perfectly independent position. Again, if he were called on to prosecute as a private agent in certain cases where he would not be expected to do so as a public prosecutor—such cases as poaching or trespass—it was clear that his public position might give him the power to exercise considerable oppression, or at least, that the public would believe so. He did not say that such cases frequently arose, but they might possibly do so, and the public confidence in the impartial discharge of the Procurator Fiscal's functions might easily be shaken. For some years past all the Procurators Fiscal, with a few exceptions, had been placed upon fixed salaries, and since then there had been an apparent diminution in the number of trials. With regard to the relative number of committals and acquittals, the system appeared to work well in Scotland; for whereas in England, in 1868, which he took to be an average year, the total number of committals was upwards of 20,000, of which the convictions amounted to 75 per cent; in Scotland the committals were 3,384—about 10 per cent more than in England in proportion to population, and the convictions exactly the same, or about 75 per cent. But when they considered the number of cases that ended in acquittal, they found them in England to amount to 20 per cent, whereas in Scotland they were only 9 per cent—the difference being accounted for by the accused being discharged without a trial taking place. Again, the method of paying those officials in Scotland had excited considerable dissatisfaction in certain counties. The professional services of the Procurators Fiscal were remunerated by fixed salaries, but their duties were confined to such cases only as were reported to the Crown Counsel; but unreported cases were not included in the salary. The result of such an arrangement must be that the public prosecutor was tempted either to get up cases where the proof was not sufficient to enable him to obtain a verdict, or even to go to a trial, because in either of those cases he would be entitled to make a charge against the county; or, on the other hand, he would be tempted to drop cases that ought to be brought to trial, and which would be held to be covered by his salary. The character of the public prosecutors in Scotland was very high, and he could not say that any great abuses had actually arisen from that system—indeed, he believed that these gentlemen generally refused to take advantage of this method of obtaining additional fees; but great dissatisfaction existed in the counties where the system prevailed, and its manifest tendency was to produce abuse. Another point in respect to which the present arrangements were not satisfactory was the ill defined position of the Chief Constable of a county, with reference to the Procurator Fiscal. The Select Committee of the House of Lords, which a few years ago inquired into the police of Scotland, recommended that in future one of those officers should be held responsible for the conduct and management of the police in those cases in which crime had to be investigated, and a suspected criminal pursued; and they also made a recommendation as to the payment by fixed salaries of Procurators Fiscal. He understood that the Commissioners of Supply for Aberdeenshire had this year considered whether they might not resist the claim of the Procurators Fiscal for extra fees, and whether they might not refuse to assess the county in order to pay him, and leave the police still responsible for the unreported eases, and that next year they were to take that course. The general course pursued in cases of suspected crime was for the police to conduct a sort of private preliminary investigation, and report to the Procurator Fiscal; who in turn, if he thought fit, carried on an inquiry into the case and reported to the Crown Counsel. A precognition was a preliminary investigation conducted at the instance of the Procurator Fiscal in the presence of a magistrate; but it appeared in the evidence before the Committee of the House of Lords that, as a rule, the Sheriff Substitute was too much employed by his multifarious other duties to be present at those investigations, and that practically they were conducted in many cases by the public prosecutor acting alone, with no magistrate of any kind present. Even the prisoner himself need not be present at those precognitions, nor was he entitled to be furnished with a copy of the evidence brought against him. He was entitled, indeed to a list of the Crown witnesses, but he was seldom able to make use of that information. That secret system of preliminary investigation was altogether different from the English system, and he thought they might, with great advantage, adopt in Scotland something analogous to that which prevailed here. The public, as well as the prisoners, suffered by the inquisitorial mode of carrying on those inquiries, because confidence was lost in the impartiality with which they were conducted, and there was fear of collusion. The public prosecutor in Scotland might drop the proceedings, and withdraw from the trial at any stage up to the moment of pronouncing sentence; nor need he give the public any reasons whatever for so doing—a proceeding which in many instances gave rise to very great dissatisfaction. He was naturally unable to give exact instances of cases in which justice had miscarried, because the secresy of the system prevented his knowing, and prevented the public from knowing, whether, in any particular case, justice had been done or not. All that he knew was, that the public felt that justice had not been fairly administered in some cases, which he attributed to the fact that public prosecutors were allowed to work so completely in the dark. No doubt the Lord Advocate would be able to contend that there were advantages connected with the secret system. That might be, but the evils far transcended the advantages. He would conclude by quoting words which had been often approved in this House—"Publicity is essential to the pure and impartial administration of justice." The hon. Baronet concluded by moving the appointment of a Select Committee.


in seconding the Motion, said he fully concurred with the hon. Baronet in thinking that inquiry and improvement were required, for however applicable the system may have been to Scotland at one time, it now certainly required alteration. Procurators Fiscal were generally solicitors, and highly respectable; but in many cases the remuneration received by them for their public duty was not sufficient to maintain them, and the consequence was that they not only practised in the Sheriff's Court, to which they themselves belonged, but did business as insurance agents, bankers, and in other capacities. Their time was therefore frequently occupied by their private business. This arose from the smallness of the district assigned to each, and however necessary that arrangement may have been at one time, it is not so now; the country is in all directions intersected by railways and telegraphs, rendering communication rapid and easy. The districts ought to be made sufficiently large to ensure a higher remuneration, and thereby secure the services of men of the highest respectability, and who could devote their whole attention to the duties of the office. Then there is the system of private investigation practised by the Procurators, which is highly objectionable and should be abolished. He had had some experience of that system. Two gentlemen, who had acted as his assistants in railway works, had been sent for trial in the Justiciary Court after private investigations. In both cases the prosecution failed. Had the preliminary investigation been public, neither of those gentlemen would ever have been sent for trial. The whole tendency of these private examinations is to cri- minate the accused, and he has no means of meeting the accusation brought against him except at the trial. He thought that if the investigation were conducted openly, it would be better for the public, better for the investigation, and certainly would be more satisfactory to the public generally. The proceedings against the two gentlemen to whom he had referred cost them several hundred pounds.

Motion made, and Question proposed, That a Select Committee be appointed to inquire into the present system of conducting public prosecutions in Scotland, with the view of amending that system, if necessary, and of extending to other parts of the United Kingdom the institution of Public Prosecutors,"—(Sir David Wedderburn,)


supported the Motion. Owing to recent circumstances great dissatisfaction with the present system existed in the West of Scotland. In Greenock, in 1867, two murders by stabbing were committed; in 1869 two others were committed in the same way. When these cases came to trial before the High Court of Justiciary, the Crown Counsel came forward and. said he was prepared to accept a plea of culpable homicide. A similar plea had been accepted more recently in the case of a woman murdered under circumstances so atrocious that he could not more closely allude to them in that House. He thought, under those circumstances, they were justified in asking for a Committee, and he trusted the Lord Advocate would accede to it.


said, he did not think a case had been made out for the inquiry proposed. We should soon have a Report from the Commission on Judicial Procedure in Scotland, which might indirectly bear on this question. The system of public prosecution, as conducted by the Procurators Fiscal in Scotland, was generally approved of, and was found to work satisfactorily. The mode of remunerating that office he considered highly objectionable, and calculated to interfere with the administration of justice, although, from the high character of those officers, it did not practically do so. Still, he considered the distinction quite indefensible, that when a case is reported to the Crown Counsel, the expense should be met by the Exchequer, and, when not so reported, it was to be defrayed by the county. This had led in most counties in Scotland to a bargain being made with the Procurator Fiscal, giving him a certain sum to do his duty. But in Aberdeenshire they had been unable to make a satisfactory arrangement, and they had no power to compel that officer to enter into such. He thought that the expense of all criminal investigations and prosecutions should be defrayed by Government, and not thrown on the landowners, on whom the burden of the police and county constabulary chiefly fell. He would urge on the consideration of the Lord Advocate the repeal of the Rogue Money Act, and that all assessments for criminal purposes should be leviable under the Police Act, the expense of prosecutions being undertaken by Government, and the only other object of that Act, the subsistence of criminals while in prison, would naturally come under the prison statutes.


said, that though he approved of much that had been said, he scarcely thought a case had been made out for inquiry. So far, the system had worked very well. There was a question connected with this subject of some importance. If any means could be devised for putting these gentlemen on a salary for all their work, whether in regard to what the country or the Government was liable for, it would be very satisfactory. This was now done by private arrangement. Another matter was the delay which took place in examining the accounts. It took three years to get them returned from Edinburgh. He hoped this would be reformed.


also thought no case had been made out for inquiry.


hoped the Lord Advocate would regard this question from an English as well as from a Scotch point of view. A feeling was growing up in this country in favour of the appointment of a public prosecutor. The system of public prosecutors in Scotland was not by any means perfect; and it would be a great advantage to England if an inquiry were to be instituted into the working of the Scotch system, before any scheme involving the appointment of public prosecutors was adopted by this country.


thought that many reasons might be given why they should have this inquiry. One, that had not yet been cited, was the doubt that sometimes existed whether any inquiry at all had been held in cases where inquiry seem desirable, and he should support the motion of his hon. Friend.


thought there should be inquiry, but he very much objected to its being supposed to depend on the character and conduct of the Procurator-Fiscal. What seemed horrible to Englishmen was, that a man should be arrested on a serious charge and examined in private, without counsel or friend being present; and the most damaging statements might be made by witnesses against him, also examined in private. He was then shut up in a gaol and his friends were not allowed to visit him, until he had undergone another examination, which was taken down in writing, and might be used against him on his trial. But all this had nothing to do with the character of the Procurator Fiscal—it was the remnant of the secret system which was at one time universal in Scotland. In his opinion the Lord Advocate could, on his own authority, issue an order that these examinations should be taken in public. He was decidedly of opinion that these officers should be appointed by the Crown and not by the Sheriff. It did not seem to him of importance whether the salary should be paid partly by the Crown and partly by the country. The question of salary was of no moment compared with the question respecting the proper administration of justice.


said, he could find no fault with the hon. Baronet the Member for Ayrshire (Sir David Wedderburn) for bringing this subject under the notice of the House, for it was one of great interest, and he acknowledged that, in his temperate remarks, his hon. Friend had evinced his usual clearness of expression and his usual ability. Nevertheless, he felt bound to resist the Motion, for the appointment of a Committee, not because there was anything in the present system of conducting public prosecutions in Scotland that he should desire to conceal, but because the system was entirely well known to everyone in authority; and, in fact, the amplest information was already within the reach of everyone who took an interest in the subject. He understood his hon. Friend to make; no remark derogatory to the Procurators Fiscal; but, on the contrary, to admit, with everyone who addressed the House, that they were men of the highest character and reputation in their profession, and he was astonished that his hon. Friend the Member for Edinburgh (Mr. M'Laren) had treated his remarks as if they were so intended. Dealing with the subject on its merits, there were two matters which had been made the subject of considerable observation by the hon. and learned Baronet. The first had reference to the fact that the Procurators Fiscal were appointed by the Courts to which they were attached. The Procurators Fiscal of the Sheriff Courts were appointed by the Sheriff; the Procurators Fiscal of the Justices of the Peace Court by the Justices of the Peace; the Procurators Fiscal of the Magistrates of the Burgh Courts by the Magistrates. Thai had been the system time out of mind. Every Court appointed its own Procurator Fiscal to attend to the conduct of the public business before them. Upwards of 30 years ago, the Lord Advocate of the day brought in a measure for the purpose of transferring the appointment of the Procurators Fiscal of the Sheriff's Court from that Court to the Crown; but that proposal was very extensively objected to in Scotland, and it was not thought worth while to proceed with it, on the ground, he believed, that the Sheriffs exercised their power of appointment in an unexceptional manner. As the object was always to get the best local practitioner to take charge of the public business before the local Court, it was thought there could be no better qualified person to make the selection than the local Judge himself. Though it might be an anomaly that the Court should appoint the prosecutor, yet he (the Lord Advocate) had never heard the system objected to on any substantial ground, such as the miscarriage of justice, or other inconvenience resulting from it. In the next place, it had been made matter of comment by the hon. Baronet (Sir David Wedderburn) that the Procurators Fiscal were not confined to public business, but were allowed to take private business. This was a matter on which there existed a difference of opinion; but, in his judgment, the existing practice was advantageous in everyway. The object was to get the best local practitioner in each county to attend to the public business, and consequently, it was reasonable to select for the office the practitioner who held the best local position, and in whom the highest confidence was placed. Now, it did not often happen that the solicitor who was deemed the most trustworthy man of business was altogether without employment; on the contrary, he was generally a man well employed, by clients; and, if it were made a condition that those accepting the office of Procurator Fiscal should give up all their private clients, then there would at once be struck off the list of those available for the office all local practitioners who had obtained any considerable amount of business of their own. It must be remarked, too, that in such a case it would be necessary to put the office on quite a different footing from that on which it stood at present. The appointment was not a life appointment, but was an appointment during the pleasure of the Sheriff, and during his tenure of office. If, then, it should be required that the Procurator Fiscal should give up all private business, the office must of necessity be put on a permanent footing, and such a salary and retiring allowance must be attached to it as would induce competent persons to accept the appointment. This would be a considerable charge. And there was the further objection that there were very few districts in Scotland which afforded sufficient to occupy such an officer's whole time and attention, and by thus confining Procurators Fiscal to the conduct of public business their quality would not be improved; but, on the contrary, deteriorated. He would now advert to the third point to which attention had been directed, and that was the secret system of preliminary examination. He might here state, for the information of the House, that that was not a part of the system of public prosecutions, but applied equally to private ones, it being a part of the criminal law of Scotland. He might at once say that it was a system of which he individually could not approve, for he was of opinion that it was neither right in practice, nor defensible in theory, that an investigation involving an issue so important to any individual as the question whether he should be set at liberty or committed for trial should be decided, behind his back, and that the evidence should be kept concealed from him. That ancient rule of law in Scotland had only been allowed to continue to the present time, because the system of public presecutions in that country was so excellent in itself, and had worked so admirably, that no practical injustice had been done under it, although he confessed that it was practically so objectionable. With a system of private prosecutions, indeed, it would be utterly intolerable; but, Scotch public prosecutors were so fair and candid, attending to the interest of justice, and to that only, without partiality, favour, or prejudice, that, not-withstanding the depositions—as they were called in England—were taken in the absence of the accused, he had not heard a complaint of even individual injustice thence arising; and he knew of nothing which was more strongly in favour of the present system than that there had been no complaint of injustice or of miscarriage of justice. He repeated, however, that the rule was objectionable in itself, and not conducive to the interests of justice, and he should not in the least object to consider, and that with a favourable disposition, any proposal to amend the rule of procedure in that respect; but it certainly was not necessary to have a Committee to take evidence on the subject. He would himself, if necessary, bring the subject under the attention of the House. Reference had been made to some individual cases—one in the town of Greenock, which seemed to have occurred through some fatality, in which the public prosecutor had restricted the charge from one of murder to that of culpable homicide, contrary to the prevailing opinion of the community. Individually he was no more qualified to express an opinion on the subject than any other hon. Member, yet it seemed to him that instances of error of judgment would occur under any system that could possibly be devised. It was in the power of a public prosecutor to restrict his "libel" as it was technically called, and he might depart from the charge wholly or in part, but that did not affect the system of public prosecutions; it was part of the law of Scotland, and might be equally adopted by a private prosecutor. Justice, he admitted, was better guarded in the hands of a public officer than in those of a private prosecutor, and he was not aware that any well-founded cases had occurred in recent years in which any charge could be made against the former. If it Lad been thought by anyone that a public prosecutor had failed to perform his duty by not pressing a charge to which he ought to have adhered, he (the Lord Advocate) would not only cause investigation to be made, but would even make it himself. No such complaint, however, had been made to him. His hon. Friend the Member for Greenock (Mr. Grieve) had adverted to a case which occurred just before he took his present Office—that in which a man was accused of murdering a woman. The trial was held at the Glasgow Circuit Court, after he succeeded to Office, and that was the reason why he was brought into communication with the presiding Judge, who volunteered the information that, in his opinion, the Advocate Depute—who had been assailed in the newspapers—had taken a right course, find one which had the entire approbation of both himself and his brother Judge on circuit. The public had not those means of judging which the Advocate Depute possessed, and if in that particular case the public had been accurately informed they might have been of the same opinion as the Judges, that there had not been any miscarriage of justice in that case. That, however, did not affect the system of public prosecutions, and if there had been a miscarriage of justice in any individual case it was only what might occur under any other system. With regard to the remarks of the hon. Member for Tiverton (Mr. Denman) he wished to remind the House that last week a Bill, the object of which was to introduce the system of public prosecutors into England, was referred to a Select Committee, which would have power, as far as the Members might think necessary to enable them to judge of the desirability of introducing the system into this country, to take what evidence they pleased. Reviewing the whole subject, it appeared, to him there had not been made out any case for the appointment of a Select Committee to take evidence upon this subject.


said, that he concurred generally in the views which had been expressed by the Lord Advocate, and especially in what he had said as to the first point of the proposed inquiry—namely, the appointment of Procurators Fiscal. He (Mr. Gordon) was equally of opinion that it should remain with the local Judges, who had opportunities of considering the merits of the various practitioners appearing before them, and to whose interest it clearly was that the best man should be appointed. With reference to the Bill which proposed to extend this system to England, he suggested whether some such mode of appointment as that, adopted in Scotland might not prevent many of the objections which had been urged against the adoption of the system in this country—those objections being principally founded on the idea that the patronage was to be given to the Crown. The system adopted in Scotland had, to his thinking, worked admirably. As to Lord Cockburn, he rather thought that learned Lord had lived to change his opinion; while it was generally thought by the legal profession in Scotland that the existing mode of appointment was the best that could be devised, and that to transfer the power of appointment to the Treasury under any Government would be attended with considerable risk, because appointments, would occasionally, though not generally, be made with reference to political opinions, and to satisfy political claims. That objection was not applicable to the system at present followed in Scotland. As regarded the payment of Procurators Fiscal, the Lord Advocate was quite right in saying that if those officers were deprived of the opportunity they now enjoyed of conducting their private business, a very considerable advance in their salaries must be made, which would throw an additional burden on the public funds. That was, however, a fair topic for consideration, though his own inclination was to adhere to a system which had really worked well. Something similar existed in Ireland, where the Crown Solicitor conducted private business, and the system, he presumed, had been applied to Ireland upon considerations such as those which had been urged by the Lord Advocate. With regard to the practice of examining witnesses in the absence of the accused—a system to which the Lord Advocate was opposed—it should be distinctly understood that the Scotch law gave great facilities to the accused, who 14 days before his trial was furnished with a list of the witnesses against him, and when in Court always had the privilege of being defended by counsel; in addition to which there was the pecu- liarity of the Scotch jury system, by which, a majority might convict or acquit, or might find a verdict of "Not proven," which enabled a conscientious jury to come to a conclusion that satisfied their own minds, without actually acquitting a prisoner, which must sometimes be the case if they had not that refuge. He trusted that the system of the private examination of witnesses would not be altered lightly, or without due consultation with persons who had well considered our system of criminal jurisprudence. He would venture to say that the system of administering the criminal law in Scot-had hitherto worked admirably. He was not aware of any defect in it, nor had he heard of anyone who had suffered injustice from it. While in theory it might not appear to be the best system, he would say there was no system of criminal administration that had worked better than that now in operation in Scotland.


asked to be permitted to state, by way of explanation, in reference to the four cases of stabbing he had referred to, that he had received from the Chief Constable of Greenock a telegram stating that a plea of culpable homicide was tendered and accepted in one case, and that the other three went to trial and were convicted.


said, that basing his opinion on well-authenticated statements, he believed that owing to the secret mode of conducting inquiries miscarriages of justice had taken place. The manner in which secret inquiries were conducted in cases of sudden death and fatal accident was eminently unsatisfactory, the matter being left to the discretion of a public officer, without any of those securities which the publicity of inquests afforded in England. Another matter deserving of attention was the manner in which the Procurators Fiscal were paid. If the mode of payment operated as an inducement to exertion—which he doubted—it unfairly laid them open to the imputation of augmenting business to increase their salaries.


said, that the Crown invariably paid by salary; the counties also generally paid their proportions by salary, and although some counties did not, it was quite in their power to do so. No doubt they must carry the Sheriff of the county along with them; but there was not a Sheriff in Scotland who would object to the adoption of such a system. The real difficulty was, that in one or two cases the counties wished to have the county rates relieved to a greater extent than was possible at present out of the public Exchequer; which showed that the whole business was not a mere question of payment by salary or fees, but of more or less relieving the local rates at the expense of the public Revenue. It might be possible to increase the relief, but it could be done only as it was done in England.


disclaiming any intention to attack officers who had worked well under a defective system, intimated that he should take the opinion of the House on his Motion.

Question put, and negatived.