HC Deb 26 April 1871 vol 205 cc1744-66

Order for Second Reading read.


, in rising to move the second reading of the Bill, said, that he felt that he owed some apology to the House for introducing a measure which, he thought, ought to be in the hands of the Government, but he did not do so until the Home Secretary, who did not disapprove its principle, and fully admitted its importance, declared that his hands were too full to allow him to undertake it. And yet it was too important a measure to be indefinitely delayed. He did not know for what Members were in that House if it were not to provide for the due administration of justice, which was so important as to sink into insignificance many of the questions which occupied much of the time of the House. In fact, the measure had already been too long delayed. The amount of authority in favour of the proposed change was absolutely overwhelming. Among those who had taken an active part in law reform there was really no difference of opinion. As far back as 1845 the Criminal Law Commission had reported in favour of it, and had used these words— The existing law is by no means so effective as it ought to be; the duty of prosecution is usually irksome, inconvenient, and burdensome. The injured party would often rather forego the prosecution than incur the expense of time, labour, and money. The intrusting the conduct of the prosecution to a private individual opens a wide door to bribery, collusion, and illegal compromise. In 1856 a Committee of the House of Commons, after inquiring very fully into the matter, had reported in favour of it, and had sketched out a scheme very similar to that which he now proposed, which they said would be— A means for placing the administration of criminal justice on a footing more consistent than the present with the necessities of the existing state of society, and the requirements of an enlightened jurisprudence. Unfortunately, Mr. Phillimore, who had proposed the change, shortly afterwards ceased to be a Member of that House, and the question had been allowed to sleep almost up to the present time. Curiously enough, another change in the criminal law had been recommended by that Committee, the object of which was to secure the attendance of witnesses necessary for the defence of prisoners, and to provide for the payment of their expenses by the public. That measure, too, had been allowed to sleep until three years ago, when it had been carried into effect by a Bill which, he had the honour to introduce. He had now to ask the House to adopt the other recommendation of that Committee in regard to the appointment of a public prosecutor. Last Session a Billon the subject was introduced by the hon. Member for Windsor (Mr. Eykyn), and after a second reading was referred to a Select Committee, which carefully considered all the details, and moulded the measure until it assumed almost the precise shape in which he now submitted it to the consideration of the House. With this weight of authority in favour of the proposed change, he might almost rest contented; and he hoped he might be able to discharge his duty by very briefly stating the evils it was proposed to remove, and what, in his opinion, was the most appropriate remedy. In the first place, he set out with the principle that the detection of guilt, and the punishment of offenders, were the duty of the State; and that independently of the interests of the private party who might have been injured. The State suffered when guilt remained undetected, and when offenders remained unpunished; and the State suffered even more when, under the forms of law, and by means of the forms of law, the innocent were unduly harassed, and their lives, which were often dearer to them, put in peril. And it was scarcely possible but that the guilty should at times escape, and the innocent be put in peril, so long as Prosecutions were in the hands of private and irresponsible persons. We saw, in some of our forms which still remained, what was the notion of our ancestors long ago. Many hon. Members were, doubtless, familiar with the terms of the Proclamation made so soon as the jury were sworn— If any one can inform my Lords the Queen's Justices, the Queen's Attorney General, the Queen's Serjeant, of any offences committed by the prisoner, let him come forward and he shall be heard. The Queen's Attorney General and the Queen's Serjeant were supposed, by virtue of their offices, to be the proper persons to be made acquainted with the circumstances affecting those about to be put on their trial; and see what was the effect of leaving prosecutions in the hands of private irresponsible persons—some were smarting under the sense of a real or supposed injury, and the temptation was to struggle, not for justice, but for victory. He would say nothing now of that class of cases constantly to be found becoming more numerous, in which criminal proceedings were commenced, not for the punishment of the criminal, but for the enforcing of private rights. But in far the larger portion of cases, the office of prosecutor was merely ministerial. He was bound over to prosecute, not for his own sake, but for the benefit of the public. Well might Lord Denman say, in the evidence he gave— Our procedure for the purpose of preliminary inquiry is open to great objection. The injured party may be helpless, ignorant, interested, corrupt. He is altogether irresponsible, yet his dealing with the criminal may effectually defeat justice; on general principles, it would evidently be desirable to appoint a public prosecutor. Anyone who frequented our police courts would see upon whom the real duty of conducting a prosecution too often fell. He would see there a number of persons, sometimes attornies, much oftener persons practising in the names of attornies, who, through personal touting, or through the intercession of policemen, got the prosecutors into their hands; and what did he see when the case was brought into Court? He saw a brief put into the hands of counsel at the last moment—the case negligently prepared—the counsel gaining his only valuable instructions from the policeman who was a witness in the case. He knew not how this was to be prevented as long as the present system lasted; but the sight was not a pleasant one to one who felt for the character or honour of the Bar, and the effect on the police was bad, as they became not only witnesses but partizans. It might be thought that where he had gained the greater part of his experience matters were worse than elsewhere; but he had had the opportunity of judging from what he had seen on different Circuits, and he found from the evidence before Committees that the evils which he had described were not confined to the metropolis, and he did not hesitate to state, as the result of his experience, that the present system of conducting prosecutions was neither conducive to the protection of innocence, or to the detection and punishment of guilt. So strongly had this been felt in many of our large towns that they had taken the matter into their own hand, and public prosecutors had been appointed by the corporations. This system had been found to work admirably. Prosecutions had been fairly and efficiently conducted; and what he wished to call the attention of the Government to was this—that the system had been found to be not only efficient but economical. This was the system which he wished to extend to the whole country, and he believed that if that were done we should not find in our criminal statistics such Returns as those which appeared for the year 1869, when, out of 29,278 persons charged with offences, 1,869 were discharged for want of prosecutors; and out of 19,318 who were committed for trial, no bills were found against 904, and 4,012 were acquitted. These results might well be contrasted with those of Scotland, where public prosecutors existed; as we found that while in England one-fifth of those tried were acquitted, in Scotland, the proportion of acquittals was only 1 in 11. He would only add that there was one class of offences for the prosecution of which a public officer was absolutely necessary if we wished to make laws for their repression really effectual. He referred to offences against the Election Law—such as bribery, intimidation, and personation. The prosecution of these offences ought not to be left to the zeal of political opponents, nor was it desirable that they should be conducted by the officers of the Government. The main provisions of the Bill, which he proposed should be now read a second time, were based on the recommendations of the Committee of last Session. It was proposed that the country should be divided into districts, to be mapped out by the Home Secretary; that to each district an attorney should be appointed as public prosecutor by the Secretary of State on the recommendation of the local magistrates, and that after the committal of any person for trial the depositions should be sent to the public prosecutor, who was then to perform the ordinary duties of attorney for the prosecution. Offences of a private nature, such as assaults and defamation, did not come within the scope of the Bill; but it was provided in cases of assault, the magistrates might, if they deemed it necessary, direct the public prosecutor to interfere. The public prosecutor might also interfere in any case prior to the committal, if he were authorized to do so, either by the local magistrate or the Attorney General. One important provision was, that no public prosecutor should be allowed to drop any prosecution without the Attorney General's consent. The only other officers to be appointed under the Bill were three consulting counsel, to whom the Attorney General might refer all cases of difficulty. If private persons chose to prosecute they would still be at liberty to do so, although every Court would be empowered to instruct the public prosecutor to intervene. One of the great evils to be guarded against was an undue increase of the patronage of the Crown. Since he was called to the Bar that patronage had increased enormously, and was in the hands of the political party which happened for the time to be in power. Consequently, Parliamentary influence was brought to bear upon all appointments in a way that was unknown during the early part of his career at the Bar. To prevent, therefore, a further augmentation of Government patronage it was proposed by the Bill that public prosecutors should be appointed by the Secretary of State only on the recommendations of the magistrates of the several districts. The opponents of the measure might urge, as an objection against it, that at present prosecution afforded a very important school for the Bar. Admitting that, he asserted they would do so still, because the public prosecutors would distribute the briefs fairly, and if they neglected to do so they would be called to task by the Secretary of State. Some persons feared that this Bill would lead to largely increased expense. Now, he confessed the Bill would necessitate an increase of expense to a certain extent; but he did not believe that the House would shrink from any expenditure which was requisite for the due administration of justice. Moreover, the expense would not be greatly augmented by the Bill. The salaries of the public prosecutors would not exceed £50,000 a-year, and under the existing system between £30,000 and £40,000 was annually paid in fees to prosecuting attornies. He believed the Bill would affect a most important improvement in the administration of justice, as it would make the innocent more secure, and render the punishment of the guilty more certain. The right hon. Gentleman concluded by moving the second reading of the Bill.

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


, in rising to move that the Bill be read a second time that day six months, said, that as a Member of the Select Committee to which this Bill was referred last year, he begged leave to state the facts in connection with it, which came within his own personal knowledge. That Committee had never thought it necessary to discuss the question of the advantage or otherwise of a public prosecutor, and never examined a witness on the point. The evidence given in the previous Committee showed that the most practical men upon it were opposed to the appointment of public prosecutors, while it should not be forgotten that almost all the causes which made the other witnesses in favour of public prosecutors were now removed. The Committee of last year felt that the principle of the measure having been assented to by that House, it was their business only to embody that principle in a Bill in the best way they could. Now, he did not object in any way to the manner in which the Bill was framed. All he wished to say was, he did not think that the authorities referred to by his right hon. Friend opposite were in favour of the appointment of a public prosecutor. For example, Lord Stanley, now Earl Derby, stated his objections to the principle. His right hon. Friend opposite was, therefore, not accurate in claiming that noble Earl as an advocate for this measure. He thought that this Bill was an invasion of the principle recommended by a former Committee on the subject, and its details extremely objectionable. It would saddle the country with an enormous expense, place a vast amount of patronage in the hands of the Crown, and make our whole criminal system dependent on the Attorney General of the day. If an enormous amount of expense was to be incurred they ought, at any rate, to have efficient officers, which would not be the case under the provisions of the Bill before the House. If public prosecutors were needed at all they should be officers who would take charge of cases from the time at which the offences were discovered, instead of merely coming in after a person had been committed for trial, and having charge of the subsequent proceedings. If the assistance of public prosecutors was not afforded to injured persons at some stage earlier than the formal commitment of a prisoner for trial, the result would inevitably be that many guilty persons would escape punishment through the ignorance or helplessness of the persons aggrieved, and the real purpose for which public prosecutors existed in other countries would not be satisfied. It was argued that public prosecutors ought to be appointed because a Committee of Parliament made recommendations in favour of such appointments in 1856; but those who used this argument seemed to forget that the state of the law which caused, the recommendation to be made had been remedied by subsequent legislation. Lord Campbell, though theoretically in favour of the principle involved in the appointment of public prosecutors—because the criminal law was, at the time he gave his evidence, often shamefully perverted by persons for corrupt purposes, more especially in indictments for perjury and conspiracy, and because the control over prosecutors was insufficient—seeing, when he came to deal practically with the question, how impossible, it was to deal with existing evils by the appointment of public prosecutors, had set himself to reform the criminal law, which he thought the preferable alternative; and, accordingly, had succeeded in removing many of those evils by practical legislation. The Committee of 1856, before whom many facts on that part of the question were stated in evidence, was strongly opposed to policemen assuming the func- tions of public prosecutors; but the effect of the present Bill would be that members of the police force would be the prosecutors not only theoretically, but practically, in the vast majority of the criminal cases tried in this country. He strongly deprecated the French system of espionage, and thought one of the worst courses to adopt would be to appoint as public prosecutors the heads of the police force, which was virtually the case in Manchester, Salford, Leeds, and many other large towns. In his opinion, the most suitable public prosecutor, if any were appointed at all, would be the Petty Sessions' clerks. Again, he thought that, regarded in a financial point of view, the proposal before the House was faulty. To carry out the scheme of the Bill, according to the recommendations of that Committee, it would be necessary, in order to have a public prosecutor for each Petty Sessional division, to appoint 765 public prosecutors, and the amount of salary to be given to each public prosecutor was recommended to be £700 per annum, and £300 for their respective clerks and offices, &c., amounting in the aggregate to £765,000 per annum, to supply, for a remarkably small and imaginary grievance, that which would prove to be no remedy at all. Another objection to the proposal was that it would prejudice the administration of the criminal law by placing an inordinate amount of patronage in the hands of the Attorney General of the day. The present appointment of public prosecutors in Mint cases was doubtless dictated by political or personal interest, and the result was that the prosecutions directed by the Treasury were the worst conducted. Yet the Bill sought to extend this system throughout the country. Moreover, the Bill would seriously affect the interests of members of the Bar, and he should like to know how the Attorney General would dispense his patronage to counsel in this matter? It was suggested that the briefs should be distributed generally; but they could not be spread as they were at Manchester, Liverpool, and Leeds, where briefs were "souped" out. He sincerely hoped the Attorney General would take this part of the subject into serious consideration. He objected to an increase of Government patronage in the legal profession—it was too large already; it could not be denied that four out every of five of the County Court Judges of this country had been appointed by the present and the preceding Government for personal or political reasons. All this tended to corrupt the Bar. Speaking warmly in behalf of the members of that body, he expressed the hope that the day was far distant when they would be reduced to the position in which the French Bar was now, or that to which the Scotch Bar was reduced some 50 years ago. With regard to the general question of the necessity of public prosecutors, he would not discuss that question, because it was not raised by the Bill. For the reasons he had stated, he would urge the House to reject this extravagant and ill-conceived measure, for which there was no demand, and would conclude by moving that the Bill be read a second time that day six months.

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. West.)


said, that as his name had been directly alluded to in connection with a remarkable case that had occurred at Worcester, he decided to say a few words on the proposal now before the House. The person referred to was named Adcock, and was a railway clerk. He was a man of plausible manners, and had obtained so much influence that he was about to be promoted to a place of great trust under the Company, when one morning he absconded; and it was then discovered that he had been systematically committing great frauds—he had inflicted great injury upon persons in all classes of society, and had, in short, shown himself to be a wholesale rascal. Counsel had given their decided opinion that the man had committed legal fraud, yet he was still at liberty. And why? It was said that it was because sufficient legal evidence for a conviction could not be obtained; but the real reason, was that for some reason or other it did not suit the persons who were the sufferers to carry out the prosecution. He (Sir John Pakington) knew of no case that so conclusively showed the real want of a public prosecutor; for it was a gross and shameful failure of justice, which would not have occurred had such an officer been in existence to take charge of the case. With regard to the steps which Mr. Hastings, an able member of the Bar, had taken in this matter, that gentleman moved at the late Worcestershire Epiphany Quarter Sessions, for the appointment of a Committee of Justices to consider the desirableness of petitioning the House in favour of the present Bill, and he believed notice of this motion was given by Mr. Hastings before the case of fraud at Worcester occurred, and therefore the question of appointing a public prosecutor was raised purely on its merits. Mr. Hastings' reference to the case in question, when bringing forward his Motion, was simply due to the fact that it was an opportune argument in favour of the course he recommended. With reference to the Bill, the House must feel indebted to his right hon. and learned Friend the Recorder for having brought this measure forward in the way he had done. It was a question of great importance, and no Member of the House was more competent to deal with it than his right hon. and learned Friend; but as it involved a very important change in our system of criminal law, he thought the House and the public would be better pleased if the question were left in the hands of the Government, than if a private Member dealt with it, however competent he might be. On his own behalf he might say, as an experienced chairman of Quarter Sessions, that his opinion was not founded solely upon the case to which he had referred, nor upon the statement, conclusive as it was, made by his right hon. and learned Friend. He had long felt that there ought to be some responsible officer appointed, as he had been very much impressed by the serious failure of justice occurring from the need of such an officer. He was not prepared to say that they ought to follow, in every instance, the example of Scotland, although Scotland had done much that was worthy of imitation. In the matter of education we had advantageously borrowed from our northern neighbours; and he would like to see an approach to the Scotch system with regard to the establishment of a public prosecutor. On the second reading of a measure, they were only to give their assent to the principle, leaving the details to the Committee, which would be the time for the hon. and learned Member (Mr. West) to go into the objections which he had urged against the Bill. The two main objections to which he adverted were connected with expense and patronage. The hon. and learned Member supposed the expense would be £750,000 a-year. But this statement required to be proved. The other objection was as to the patronage. He (Sir John Pakington) did not want to see the independence of the Bar assailed. No one would more regret to see this than he would—he could not imagine a greater misfortune to the country than anything that should lower the character of the English Bar; and it would be for the Government to take care that the details of the Bill should be so arranged as not unnecessarily or unavoidably to increase the patronage of the Crown. He thought the hon. and learned Gentleman had magnified the expenses of the Bill; but he did hope that neither the Government nor the House would be deterred from anything relating to the establishment of a system of justice by considerations of expense. He would vote for the second reading of the Bill, and he hoped that it would be taken up by Her Majesty's Government.


hoped the House would not decide with regard to this Bill from the speech of the hon. and learned Member for Ipswich (Mr. West). The reason why the Committee appointed to consider this subject had not taken any evidence was because very exhaustive evidence had been taken by a Committee that sat as recently as 1855 or 1856. The hon. and learned Gentleman said the Bill proposed to leave the conduct of criminal prosecutions in the hands of the police; but his hon. and learned Friend either could not have read the Bill, or deeming its provisions too strong sought to secure its condemnation by arguing against provisions which it did not contain. So far from intending that the prosecutions should be under the control of the police, as was practically the case under the present system, one of its objects was to take them completely out of their hands. Then, again, his hon. and learned Friend drew a most alarming picture of the expenses incurred under its provisions; but as far as he (Mr. Rathbone) could make out, the expense of working the measure would amount to nothing like the imaginary sum contemplated by his hon. and learned Friend, but would, he believed on good authority, not exceed that of the existing system by more that £29,000; and in return for that increase they would obtain a decrease of crime by its better supervision, and greater certainty in the administration of justice. The patronage devolving upon the Attorney General would be very trifling, consisting only of his three assistant counsel, because the public prosecutors would be recommended by the magistrates. At the same time, there must necessarily, by the very nature of the thing, be some patronage in the hands of the Law Officers of the Crown; but it would be impossible to exercise it without its being open to the observation and criticism of the public. He trusted that the House would not accept the opinion of his hon. and learned Friend, but would read a second time a Bill which, he believed, would render it more difficult for rich men to commit offences with impunity.


said, he was glad that the long-vexed question of the appointment of a public prosecutor had teen brought before the House of Commons. He was free to confess that, although he could not claim a very lengthened experience in the Criminal Courts, still, to the extent of the knowledge he had acquired in the course of some eight years at the Central Criminal Court, he had come to the conclusion that the evil said to be caused by the large number of prisoners who escaped before, and on their trial under the existing system, had been very largely exaggerated. He looked in vain both to the public Press, and to those who supported the appointment of public prosecutors, for any definite statement of the names of persons who had escaped. He was not going to discuss the question of the patronage which was likely to be exercised by the Attorney General should the scheme of the right hon. Gentleman be accepted by the House. He dared to say that the Attorney General and other persons who would have the opportunity would not be less likely to appoint friends than other persons would be. He did not wish to discuss questions of so much delicacy, because he hoped that, at all events, proper persons would be appointed. Still, we did see extraordinary appointments made that somewhat startled us. We found a very round man placed in a very square hole. Although he went with the right hon. Gentleman who had introduced this Bill to this extent that the appointment of a public prosecutor was exceedingly desirable, he thought that our present system might be made use of to introduce one that should be satisfactory to all; and that by utilizing existing institutions, and enlarging the authority of magistrates' clerks, we should obtain an experienced and valuable institution for carrying on criminal prosecutions, without, at the same time, causing that disturbance which must inevitably result from the adoption of the Bill. An observation was made by the the right hon. Baronet the Member for Droitwich (Sir John Pakington), referring to a person who ought to have been charged at Worcester with the offence of forging railway bonds; and the right hon. Baronet said he considered that that was a strong instance of the necessity of appointing a public prosecutor, because if there had been a public prosecutor the man Adcock would have been punished. But was it at all likely that the two railways, if they were interested pecuniarily against the apprehension of this man, would have communicated any more with the public prosecutor of the district than it appeared they had not done with the magistrates? However, he did not think this instance told very much one way or the other. No one could deny that failures of justice did occasionally occur; but they were few and far between. Dealing with the question of expediency, let them see what was the machinery by which the right hon. Gentleman the Recorder of London proposed to carry on the administration of criminal justice. He said that in certain districts throughout the country, a public prosecutor should be appointed, who should be a solicitor, and should possess certain qualifications mentioned in the Act; who was to devote the whole of his energy and his time to the conduct of criminal prosecutions arising within his jurisdiction, and who was to be paid a salary according to a scale to be approved by the Treasury. In addition to that he was to be paid a further allowance for the cost of criminal prosecutions according to the allowances made to solicitors under existing circumstances. In ordinary cases, at Assizes and the Central Criminal Court, this allowance was—for the counsel, £2 4s. 6d.; to the solicitor for drawing the brief, £1 11s. 6d. But would these payments be sufficient to ensure a proper conduct of the prosecutions? It would often be that an inferior advocate would be appointed to conduct an important case, and the failure of justice that might perhaps ensue would ultimately prove very costly to the country; or else a much greater expense would be incurred in paying a sufficient fee to engage the services of an experienced counsel. It seemed somewhat doubtful from the Bill whether a private prosecutor was still to be permitted if he choose, through his attorney, to select his own counsel, and pay from his own pocket the heavier fee that would be required by an eminent counsel. He was not going to discuss the alleged expenditure of £750,000 a-year spoken of by the hon. and learned Member for Ipswich (Mr. West). He did not anticipate such an expenditure, for, speaking the opinions of men conversant with the subject, he thought the expense could be covered by £150,000. There was also a proposition to allow extra expenses. He would take the case of a professional man, a doctor, who might be passing through London down Cheapside, and had his pocket picked; he might have to remain in London all night, and to attend in London at the trial, and what would be the expenses that he would be allowed? Why, 3s. 6d. a-day and 2s. 6d. a-night—because he was not called to give evidence in a professional capacity. That was not a right thing. The hon. and learned Gentleman who introduced the measure thought the proposed system could be carried on for £40,000 a-year; but he believed that the actual expense would turn out, as he said before, to be £150,000 or £200,000. If they were willing to spend an additional £200,000 a-year, it would be better to revise the whole of our criminal law administration, and to appoint a Minister of Justice, instead of saddling the Attorney General with the increased responsibility contemplated by the Bill. The magistrates' clerks throughout the country were at present discharging the duties of public prosecutor. He had heard the observation made by persons discussing this matter—"It is a dangerous thing to place in the hands of the magistrates' clerks the power of conducting prosecutions, because it subjects them to the temptation of inducing these magistrates to commit cases for trial." But that was a stigma on a most respect- able class of persons. If such observations were to be made with respect to magistrates' clerks it was most unfair; and the manner in which they conducted their business at Assizes, and the Sessions of the country, showed this. Whether this Bill was persevered in, or whether it was withdrawn with a view to some future action being taken by the Attorney General, this was quite certain—that it was high time the question was determined one way or another. He had heard it suggested that 70 public prosecutors would be all that would be needed. Was that possible? Why, with the number of Petty Sessions throughout the country, the public prosecutor would be called for at A at 12, at B at 1, at C at 2, and perhaps at all three places at once. The 6th clause of the Bill would put a perfect block on the administration of criminal justice in the police courts. He had attended the magistrates' courts. A case had to be remanded; communication would have to be made to the public prosecutor of the district, who might reside at Bristol, and he would have to come up to London to consult the counsel for public prosecutions, who really would have to do little more than exercise the discretion at present vested in clerks to magistrates. He hoped that the Bill of the right hon. and learned Gentleman the Member for Southampton would not become law; but that the question involved in it would receive adequate attention from the Law Officers of the Crown and from the country in general, with a view to some satisfactory solution and settlement.


said, the Government had been asked by the right hon. Member for Droitwich (Sir John Pakington), whether they were in favour of the principle of the Bill? He answered that they were. He did not commit himself to the details of the measure; but he had always been in favour of it since he had had a seat in Parliament. At the same time, if he consulted his personal feelings he should oppose it, on the two grounds that it would impose on him additional public duties, which he was very loth to undertake, and the invidious nature of the duties of the office. England, so far as he knew, was the only civilized country in the world in which prosecutions were not considered to be the office of the Executive Government—in other words, in which a public prosecutor was not appointed. In Europe, in America, in Scotland, in Ireland, there were public prosecutors; and he thought that the time had come when a public prosecutor was requisite in England. He would not, of course, suggest the adoption of the detailed system of any country; but of the evidence in favour of the subject, he had a weight of authorities almost overwhelming. He had the authorities of three successive Lord Chief Justices of the Court of Queen's Bench—Lord Denman, Lord Campbell, and Lord Chief Justice Cockburn, and to supplement them, the authority of the right hon. and learned Gentleman the Recorder himself was of no small account. The present Lord Chief Justice said he thought it very often happened that cases were brought to trial which were only imperfectly got up, and that they failed for the want of some superintending authority to put the evidence together and see that it was complete; that some cases had come to the Court which ought not to have come there; and there were cases of collusion in which, by arrangement between the parties, the cases were not taken before the grand juries, or the witnesses absented themselves, or did not give the evidence which they ought to give, so that guilty parties got off. He (the Attorney General) thought this difficulty would be got rid of by the appointment of a public prosecutor. The Lord Chief Justice gave another reason for the appointment of a public prosecutor, in the improper interference of the police in public prosecutions. It was the intention of the Bill that the prosecutions should be taken out of the hands of the police. The principle of the Bill had been unanimously agreed to, and it had gone before a Committee. The hon. and learned Member for Ipswich (Mr. West) seemed singularly to misunderstand the object of the Bill and its provisions. He said it was a great deficiency in the Bill that it did not establish some better system for the prosecution of crime, and he objected to a public prosecutor being at the head of prosecutions which ought to be in the hands of the police. God forbid that the police should be at the head of prosecutions! The hon. and learned Member talked of there being 750 public prosecutors; but 60 or 70 would be more like the number, and he thought their appointment would not tend to lessen the independence of the Bar. The Bill would not give any additional power to the Attorney General, but, as a matter of fact, would rather take from than add to his patronage, which, he thought, was a very good thing. At present, he had the power of appointing counsel in Mint and Post Office prosecutions; but, on the passing of the Bill, those prosecutions would be placed under the general law, and the patronage would be taken away from the Attorney General. As to the expense which the measure would entail, the Treasury, which could not fairly be accused of prodigality, had examined the provisions of the Bill, and, subject to one or two alterations, they gave it a general approval. He himself believed that the Bill would introduce a great improvement into the administration of public justice, by the appointment of public prosecutors; and, therefore, without committing himself to all its details, he should support the second reading.


said, that, as a Member of the Committee which sat upon the subject, he denied that the course taken by that Committee precluded him from objecting to the principle of that Bill. Having had long experience at one of the largest Sessions in this country, he did not remember a single case where justice had failed, except under circumstances in which it would have equally failed under that Bill. It had been stated that of 29,000 persons charged 2,000 were discharged for want of proof; but the greater proportion of the 2,000 would not have come within the provisions of that measure, being cases of drunkenness or the like, in which nobody would appear to establish the charge. He did not think the hon. and learned Member for Ipswich's estimate of the probable cost of that measure was much too high, for they could not well do with less than one public prosecutor for almost every Petty Sessional division; and they would thus require 500 or 600 prosecuting attorneys to carry out the Bill, at yearly salaries not much under £600 or £700 each. He agreed with the hon. and learned Member for Shrewsbury (Mr. Straight) that if they wished to alter the present system at all, it would be better to give more power to the existing justices' clerks than to create these new offices. The Bill provided that a public prosecutor should intervene after the person charged had been committed; but that would not be of any use, because the evil of any failure of justice would generally have occurred before committal. Again, the public prosecutor was, if he thought fit, to intervene after the laying of the information; but that would admit of a diversity of procedure before magistrates which would be extremely dangerous; and where the public prosecutor did not think fit to intervene, it would be argued before the magistrates that it might be taken for granted the case was not one that should be pressed. He concurred in what the hon. and learned Member for Ipswich had said as to the effect of the Bill upon the Bar, and he maintained that the measure would do nothing to prevent the failure of justice which might not be amply provided for under the existing system.


said, that he also was a Member of the Committee which sat upon the subject, and considering the unanimity which prevailed in that body, he was somewhat surprised to find that objections were now raised to the Bill by Gentlemen who had served on the Committee with him. He could testify, as he had had some experience of the system, to the good working of public prosecutors in Ireland, and he held that the Executive Government ought to be as responsible for the administration of justice with regard to preventing improper prosecutions, securing economy, and protecting the public from improper and corrupt transactions in England as they now were in that country and also in Scotland. All the evidence adduced before the Select Committee of 1856 was in favour of the proposed change. It had been spoken of in the highest terms by the Judges of the land, and by the late Lords Brougham and Campbell; and with regard to the expense, instead of being so costly as had been said by the hon. and learned Member for Ipswich, experience had proved in Ireland exactly the reverse, there being in that country 33 local public prosecutors, or almost exactly one for each county, their salaries being from £150 to £200, and the total expense not amounting to £7,000 per annum, and that of Crown solicitors to about £18,000. It was a mistake to suppose that a separate public prose- cutor would be required in England for every Petty Sessional division, as he imagined that 70 for the whole of England and Wales would be found sufficient. All the objections to the Bill he considered were such as could be settled in Committee. In Ireland the local public prosecutors had not to attend once in 100 or even 500 cases at Petty Sessions, the Attorney General directing him to do so only in grave cases. In addition, that the system did not militate against the independence of the Bar was proved by the present position of the profession in Ireland, who, whatever they might be said to be in point of talent, were not in any way inferior in independence to the members of either the English or Scotch Bar.


regretted that the House had not heard more of the opinions of the country magistrates and chairmen of Quarter Sessions on a subject so closely related to their functions and jurisdiction, and thought that, as a general rule, magistrates' clerks were well qualified to discharge, and could and did adequately discharge the duties required under the measure. He was astonished to learn from the right hon. and learned Recorder that there were such numerous failures of justice in London; and he believed that that state of things had no existence in the country generally. The system contemplated by that Bill was totally different from the one adopted in Ireland, and on that ground he must offer every opposition in his power to the measure. The duties of the public prosecutors of counties in Ireland were practically ministerial, the depositions in every case of committal being sent to the Attorney General, who determined whether the prosecution should go forward. That Bill, however, proposed to give to public prosecutors—attorneys nominated by the Home Secretary—powers that were not ministerial, but judicial. He protested against the notion that when a bench of magistrates had committed an accused person for trial, it should be within the competence of a country attorney to say that the case should not proceed further. That would practically take away from a private prosecutor the right which the Constitution now gave him. That was a blot in the measure which did not attach to the Irish system. Moreover, a private person going on with a case after the public prosecutor had declined, would do it in the full peril of paying the costs himself. He did not say he was altogether opposed to the principle of a public prosecutor, but he was decidedly opposed to the principle that a public prosecutor should have the powers, duties, and responsibilities cast upon him by that measure. This was a case in which the details of the Bill went to the root of the whole measure, and therefore he could not assent to its second reading.


thought that was a question on which more depended on the machinery by which the thing intended was to be carried out than on an abstract principle, and it was on that view of the matter that he wished to make a few observations. There could be no doubt that many circumstances had arisen within the last few years which might seem to render it necessary that some assistance in some cases should be given in the way of public prosecution; but he questioned whether that Bill would do it. Some of the gigantic commercial frauds and other matters that had recently occurred were of such a nature as to make it almost beyond the power of a private person to undertake the responsibility and encounter the difficulty of prosecuting. But what did he find in that Bill? It professed in a sense to be permissive in any other part of the country except London; but, in fact, it left an arbitrary discretion to the Secretary of State for the time being to constitute districts as he thought fit. How the Secretary of State was to arrive at the will or wish of the districts passed his comprehension, because they were not to be conterminous with the counties. Again, if a borough or a district wished a public prosecutor to be appointed how was it to be done? It would be very difficult for a Secretary of State to come to a conclusion as to what was the wish of a particular district on the subject of the appointment of a public prosecutor, and, therefore, on this point the Bill appeared to him to be inconveniently framed. If the Bill as it stood were to become law, a very extensive and most unjust system of remands would grow up under it, which would involve great hardship upon unconvicted prisoners, who were treated more strictly in prison when under remand than those who were convicted, and thus often suffered much injustice. The Bill left them in per- fect ignorance as to the class of persons who were to be appointed under it, and their remuneration, although it was most essential that the calibre of those who were to carry it into effect should be known, which could not possibly be, until they knew the terms of the appointment. This was the more important as, upon the nature of the appointments, would depend the successful working of the system. The Bill was also obscure on the point whether the public prosecutor was to conduct the prosecution personally, or was to be at liberty to employ counsel, and as to how he was to be paid, because he could not be a witness as the prosecutor generally was under the present mode. This was a most important matter, because it was well known that the expenses of prosecutors were frequently cut down to such an extent that there was a failure of justice in consequence, witnesses being paid on so low a scale that they refused to recollect on the trial facts that would tell against the prisoner. What the public required was that in great criminal cases the Attorney General should be authorized to give his assistance on behalf of the prosecution when necessary. On striking a balance, the inconveniences of the measure before the House would be found to outweigh its conveniences, and therefore he should vote against it.


believed hon. Members must have arrived at the conclusion, and it certainly was verified by his own personal experience of 30 years as a county clerk of the peace, that no evidence had been placed before the House to show the necessity for the appointment of public prosecutors out of the metropolis. With one exception, no case had been mentioned in which the prosecution of a great crime had been prevented in the provinces, and there was no evidence given before the Select Committee of compromises arising from the absence of a public prosecutor being made in the country. Under these circumstances he wanted to know why this measure should be imposed upon the country? If an experiment was necessary it might be made in connection with the Central Criminal Court; and should the Bill be read a second time, he would, on going into Committee, move that its application be limited to that Court. In the exceptional case of Adcock at Worcester, where it was alleged there had been a failure of justice through there being no public prosecutor, the alleged criminal absconded before he could be apprehended and brought to trial, and, therefore, justice could not have been vindicated even had a public prosecutor been appointed. In Manchester and Leeds public prosecutors had already been appointed by the local authorities, and if other populous places thought necessary they could follow the example set them by those two boroughs without any new legislation. He challenged the right hon. Gentleman the Home Secretary to point out any cases that had occurred in the agricultural districts which called for the appointment of a public prosecutor. The measure, if carried, would be more expensive than was anticipated, and would entail the appointment of a great number of persons to fill this office, because it would be impossible for one man to be present at the numerous Petty Sessions throughout the country, which might be sitting on the same day. The large number of cases now disposed of at Petty Sessions had rendered the appointment of public prosecutors still less necessary than in the days of Lord Campbell, who had declared that it would destroy the nursery of the English Bar if the patronage of Petty Sessions' prosecutions were put into the hands of one man, which would be the effect of the Bill, if passed; and the Attorney General, whatever other virtues he might possess, was not an angel. He suggested that power should be given to the justices at Petty Sessions to appoint their own clerks to conduct prosecutions, paying them by salary and not by fees, so that they should have no interest in prosecutions, and he still held by the evidence he had given in opposition to this proposal when before a Select Committee some years ago.


remarked that the opinion of Lord Campbell, to which the hon. and learned Member who had just sat down had referred, had been laid before the Committee, who had, nevertheless, decided by a large majority in favour of the appointment of public prosecutors, while the present Lord Chief Justice strongly supported their decision. The hon. and learned Gentleman had asked him whether any cases had occurred in provincial towns which would render the passing of a measure like that now before the House necessary; but the best answer that could be given to that question was to be found in the fact that two large cities had appointed public prosecutors on their own responsibility. In his opinion, had the necessary facilities existed, the counties would have followed the example so set them. He had found, in his experience as a magistrate and as chairman of Quarter Sessions, that there was a most scandalous struggle for prosecutions. His own opinion was that the advantages flowing from the appointment of public prosecutors might be bought too dearly. He could undertake, however, to say that the expense of the proposed system would be but little more than that which was incurred at present, the subject having been carefully investigated by competent persons at the Treasury. At the same time, there were many portions of the measure which required careful consideration, and he felt strongly inclined to ask the right hon. Gentleman to withdraw his Bill, after he had tested the opinion of the House with reference to it, inasmuch as the subject was one which ought to be taken in hand by the Government when a fitting opportunity should arrive for them to deal with it. He should give his vote in favour of the second reading of the Bill.

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

The House divided:—Ayes 129; Noes 89: Majority 40.

Main Question put, and agreed to.

Bill read a second time, and committed for To-morrow.