HL Deb 13 June 1881 vol 262 cc325-30

, in rising to call attention to the secrecy of the system of criminal procedure in Scotland in its preliminary stages; and to ask Her Majesty's Government, Whether they will consider the expediency of promoting, by means of legislation or otherwise, a greater degree of publicity than is now accorded to inquests and precognitions by public prosecutors in cases of death under suspicious circumstances and in cases involving criminal charges? said, he wished, at the outset, to guard himself against the supposition that he aimed at the introduction of coroner and coroner's juries into Scotland. In that country they had no high sheriff and grand juries, no coroners and coroners' juries, and what was especially noticeable, they had no magistrates sitting in public for receiving and determining whether an accused person should be dismissed or committed for trial. They had instead a Lord Advocate, who was the chief prosecutor for Scotland, and sheriff substitutes, and last—but not least—a procurator fiscal for each county. The duties of the procurator fiscal were of the highest importance, in consequence of his functions being carried on in private and behind the back of the public. He received information and took evidence in private, not even the prisoner receiving information as to its tenour; and to such a degree was the rule of secrecy carried, that a prisoner's declaration was made by him in private, and he was not allowed to be accompanied by a friend or professional adviser. If the investigation did not result in a trial, then the whole evidence was kept secret. The number of such cases in which no trial took place was naturally very large, and of the merits of such cases, or why they were not pushed to trial, the public always remained ignorant. This led to, perhaps, unfounded gossip and unjust suspicion, and a good deal of mischief was sometimes engendered. Even an application by a friend or by an interested party for a copy of the precognition was met by the statement that it was contrary to the rules of the Crown Office. In some cases a complete summary of what occurred had been published by a local newspaper; but although the summary was complete, it did not carry the authority with it that the evidence itself would have carried. In the House of Commons, in 1875, Dr. Cameron pointed out that the Procurator Fiscal of Glasgow had imparted the precognition he had taken to certain private parties at his own discretion, and was found fault with by the Lord Advocate. Crown agents themselves sometimes gave information to the Press; and in the Report of the Roxburghshire Justices in 1876 on criminal proceedings, it was stated that a certain eminent Judge, when he was Crown counsel, was in the habit of communicating the results of investigations in certain cases to the Press, for the satisfaction of the public mind. Further, in what were called sensational cases, the evidence given found its way to the public in a very irregular way, and in most cases in a very imperfect and misleading form. He remembered a case in which a constable was violently assaulted, and where, in self-defence, he struck his assailant a blow, from the effects of which he died. The procurator fiscal and the sheriff held the preliminary investigation, and, after taking all the evidence, decided that there was no case on which they could send the man for trial, as he had been compelled to act, and did act, in self-defence. In the meantime, great agitation was got up, immense excitement prevailed, and unauthorized and erroneous accounts of the evidence were published. In the result, a second investigation was ordered, and was made with the same result. Soon afterwards a Member of the House of Commons asked the Government whether it was true that a constable had killed a man, and yet was still at large; and the reply given was that an order had that day been given to put the constable on his trial. The trial took place, and the jury unanimously acquitted him. All this would be avoided if the authorities were permitted to give authentic information to the Press, so that the public might have before them a reliable version of what took place at the preliminary investigation. He was strongly of opinion that the affording of such facilities to the Press of arriving at the facts would be accompanied by good results. The Miners' Association had strongly recommended that in the case of mining accidents a public inquiry in the nature of a coroner's inquest should be held. He thought, on the whole, that the criminal business of Scotland was very fairly and well conducted. At the same time, there were some defects which he thought well worthy of consideration. For instance, it was very unsatisfactory to find that in 1874 Dr. Russell, medical officer of Glasgow, reported there were in Glasgow 16,323 deaths, of which 3,601, or 22 per cent, were uncertified. The House of Lords Returns for January and May, 1878, showed that in 1876, in respect of cases of death under suspicious or unknown circumstances connected with murder, culpable homicide, &c. there were 92 investigations, resulting in 48 trials, leaving a balance of 44 cases respecting which the public were entirely uninformed from official sources. In regard to all other cases of sudden death, or death under suspicious or unknown circumstances, there were 2,606 investigations by the procurator fiscal, resulting in only four trials, so that 2,602 had been entirely hidden from the public view. In pressing the subject upon their Lordships' attention, he had fortified himself with the opinions of persons who were well worth listening to—with the opinions of Lord Young, Lord Shand, Lord. Rutherfurd Clark, Mr. Charles Morton, and the late Mr. Justice Willes. Lord Young, Judge of the Court of Session, and who was a Member of the Courts of Law Commission, referring particularly to this question of preliminary investigation, and as to precognition and commitment to trial, said— My opinion is hostile to the system of secret investigation which now prevails in Scotland. I do not think it right in itself, or required in-the interests of justice, that any person should be committed to prison on evidence taken he-hind his back—not even in presence of a magistrate—and studiously concealed from him. I have ever regarded this system, which has descended to us from remote and comparatively dark times, as a blot on the Criminal Law of Scotland. I am not of opinion that the ends of public justice are thereby aided. On the contrary, I think public justice would be promoted by adopting in substance the suggestions set out in the 7th and 8th pages of the Report of the Courts of Law Commission. The apprehensions stated in the Report are, I think, fanciful, and not warranted by the experience of England, to which it appears to me legitimate to appeal. In conclusion, he must say that he did not expect any positive answer to the Question of which he had given Notice, and which he now asked; but he would venture to suggest, in order not to make the discussion quite barren, that the Government might grant a monthly Return for each county of the cases of sudden death that had been inquired into by the procurator fiscal, with a statement of the result of the inquiry, in each case distinguishing those on which precognition had been taken with a view to criminal proceedings, and that a copy of such Return should be communicated to the convener of each county.


My Lords, I am afraid the answer I have to give the noble Earl (the Earl of Minto) he will scarcely think satisfactory, although it is nothing more than he expects. The Question that he has brought before your Lordships is one that is not at all easy for the Government to deal with, partly for one of the reasons to which he has alluded—namely, the unpaid magistracy of Scotland exists in reality in little more than in name. If the preliminary investigation which takes place in cases of criminal proceedings were conducted in public, it would be necessary to conduct it in the presence of a magistrate—that is to say, in the presence of a paid and legally trained magistrate. The paid magistrates consist of the sheriffs and sheriffs' substitutes, and they are already over-burdened with a large quantity of work in addition to the amount of general work they have to get through, and it would be necessary to add very largely to the staff of salaried Judges in Scotland before it could be possible to carry out the suggestion of my noble Friend. It has already been under consideration whether it would be possible for the sheriffs to attend all these criminal investigations in which public interests are involved—in such cases as railway accidents or loss of life at sea or mining explosions; but, up to the present time, it has not been possible to make any arrangement for doing so; and before it could be done I think the Secretary of State would be compelled to have recourse to Parliament for provisional legislation in the matter. I have to say, in reply to my noble Friend, although it is impossible for the Government to pledge themselves to any particular course in regard to this matter—and I am bound to say in addition, as far as Her Majesty's Government are aware, there exists no general desire in Scotland for the change he has mentioned—the Government are alive to the importance of the question, and undertake to give it their careful consideration, and more than that I am unable to say.


said, he must apologize for interfering in Scottish affairs; but it seemed to him that the remedy existed in returning to the old ways which existed before Government agency was substituted for the services of the landed proprietors. The Jacobite Rebellions of 1715 and 1745 led the Hanoverian Government to put an end to the system of magistracy which then prevailed among the country gentlemen, owing to the suspicion which was entertained of their tendencies. It would be, he thought, a very great addition to the satisfaction of the Scottish proprietors in general, and an advantage to the country and public service, if a return were made to the old ways, or, at all events, that the Scottish gentlemen had the power of participating in the government of the country beyond their duties of Commissioners of Supply.


I may, without indiscretion, I think, give a very short answer to the suggestion of my noble Friend (Lord Waveney). The answer is simply this—that the people of Scotland would not understand it, and, I may say, would not stand it either. There is a very strong feeling in Scotland against any unpaid magis- tracy similar to that of England, and it would be perfectly hopeless for any Government to attempt to introduce a system other than that which now exists.