[BILL 68.] CONSIDERATION. (Hansard, 5 May 1879)

§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)

said, with regard to the Amendment of the hon. Member for North Warwickshire (Mr. Newdegate), that when the Bill was last before the Committee the hon. Member was not present, and the Amendment which he had placed on the Paper was somewhat altered by the right hon. Gentleman the Home Secretary. The alteration had been made at his (the Attorney General's) suggestion. The Amendment, he believed, was to the effect that where a prosecution was not being duly proceeded with application should be allowed to a Court or Judge. He, on the other hand, believed that the best course would be an application to the Attorney General, and that view having been communicated to the Home Secretary, the clause of the hon. Member was accordingly altered. But it turned out that the hon. Member for North Warwickshire had a very decided objection to the substitution of the Attorney General for the Court or Judge. He (the Attorney General) was of opinion that where application was to be made for the purpose 1774 of showing that a prosecution was not being duly proceeded with by the Public Prosecutor or his assistant, the authority to whom such appeal was made should be the Attorney General, and not a learned Judge. Still, the matter was not one of much importance; and as the hon. Member desired his clause to stand as it was, it being necessary that there should be power of application to some authority, he was quite willing to waive the opinion which he entertained in favour of allowing the clause to be restored to its original form. He was, therefore, willing that the Amendment of the hon. Member should be accepted.

§ MR. NEWDEGATE

said, he was glad to find that the hon. and learned Gentleman the Attorney General was prepared to accept the Amendment to this, the 9th clause of the Bill, of which he (Mr. Newdegate) had given Notice, and which would restore the clause to the form in which it originally stood on the Notice Paper in his (Mr. Newdegate's) name. He could assure the hon. and learned Gentleman that, except as acting upon the advice of the highest possible authorities on this subject, he should not have presumed to have given Notice of the clause. The object of the clause was to assimilate the position of the Public Prosecutor, who, under the clause, would be appointed for England, as regarded the Courts of Law, to the position which the Lord Advocate occupied in Scotland. In 1872, in the case of Angus Mackintosh, the Lord Advocate had refused his concurrence in the matter of criminal prosecution for illegal detention, which Angus Mackintosh desired to institute. Mackintosh presented a petition to the High Court of Justiciary in Scotland, who entertained the petition, and called the Lord Advocate before them. The Lord Advocate appeared, and explained the grounds of his having refused his concurrence in the case which Mackintosh desired to submit to the Court. The Court held that the grounds of refusal were sufficient, but did not give this decision until the case, arising out of the petition of Mackintosh, had been fully argued. The Court thus decided that, although by custom the Lord Advocate was the sole prosecutor in criminal cases, the right of the subject to appeal to the Court, and the right of the Court to decide upon the subject's 1775 appeal, were in no way barred by the position and function of the Public Prosecutor in ordinary cases. It was this right of appeal to the Supreme Court which he (Mr. Newdegate) was glad to find that Her Majesty's Ministers were prepared to preserve to the people of England, as it had been preserved to the people of Scotland.