COMMITTEE. (Hansard, 6 August 1857)

THE LORD CHANCELLOR
proposed to amend the clause by striking out that part of it referring to the Judges, because it might happen that a trustee, charged with fraud, might be tried before the very Judge who had sanctioned the institution of proceedings against him.

LORD CAMPBELL
approved the Amendment, and expressed an earnest wish that, in other branches of the law the sanction of some public officer might be necessary before criminal prosecutions were instituted. He had frequently observed that the most 1126 frightful abuses arose from the facilities which were given to private prosecutors, without any notice whatever to the parties accused, to prefer bills of indictment, and immediately to obtain warrants thereon. That was the case, particularly, with regard to charges of perjury and conspiracy. Those indictments were frequently preferred for the sake of extortion. If some public functionary were responsible for the institution of those proceedings, it would be a great improvement in our criminal jurisprudence. He had had a good deal of conversation with the late Attorney General, Sir Alexander Cockburn, on the subject, and his learned Friend had made up his mind to propose a Bill to remedy the evil. He hoped that a Bill of that nature would, ere long, receive the sanction of the Legislature. For the present, he thought it was highly desirable that no person should be liable to any prosecution for breach of trust without the previous sanction of a public functionary.

§ LORD ST. LEONARDS
briefly expressed his concurrence in the Amendment proposed by the Lord Chancellor.

§ LORD WENSLEYDALE
moved the omission of the entire clause, because he thought that it would lead to great abuse. By the common law every individual had a right to go before the grand jury and ask for permission to prosecute any one who he thought had inflicted upon him an injury punishable under the criminal law. That privilege was one of the distinctions between this and foreign countries. In them, no criminal prosecution could be commenced without the interference of the Executive, and, therefore, for the accomplishment of party purposes, or for the gratification of individual animosity, the Government and the officers of the Government had ample opportunities. There were no doubt cases in which it was desirable and necessary that the institution of criminal proceedings should be vested in an officer of the Crown; but this Bill did not directly concern the public; it had merely reference to wrongs committed on private individuals. The law relating to trustees was now clearly defined, and no such provision as this was necessary. He therefore hoped that their Lordships would omit the clause.

THE LORD CHANCELLOR
said, the great evil which was apprehended from this Bill by the other House was, that while 1127 it would punish those who had been guilty of fraud, it would also deter honest men from undertaking the duties of trustees. This objection was intended to be obviated by the introduction of the safe-guard afforded by this clause. It was made a necessary preliminary to the institution of a prosecution for what would constitute an entirely new offence, that the proceedings should have the sanction of a high functionary familiar with the subject, who would see whether the case fairly came within the purview of the law.

§ LORD ST. LEONARDS,
while subscribing to the general views expressed by his noble and learned Friend, (Lord Wensleydale), still thought this clause one which their Lordships might safely adopt. It was a peculiar provision, calculated to meet a peculiar set of circumstances. It would prove to honest trustees that a faithful performance of their duties exposed thorn to no real danger.

LORD CAMPBELL
felt strongly that the case contemplated by the clause justified an exception being made to the general rule. There ought to be some check put upon vexatious and rash prosecutions; and no evil was likely to arise from vesting the proposed discretionary power in the Attorney General. His noble and learned Friend (Lord Wensleydale) seemed to be under unnecessary alarm on this score. At present, no writ of error could be brought without the sanction of the Attorney General, who also had it in his power to put a stop to the execution of the criminal law. If, however, that functionary abused the authority intrusted to him by law for wise purposes, he was liable to be called to account, and even to be punished.

§ LORD WENSLEYDALE
said, he objected to a practice hitherto unknown in the constitution of this country. The offence in question was one committed against a private individual, and why should he be debarred from bringing his case before a grand jury?