§ MR. J. G. PHILLIMORE
said, he would now beg to move for leave to introduce a Bill to appoint public prosecutors. As be believed there would be no objection to the introduction of this Bill, he should not feel it necessary to detain the House any great length of time by going into the reasons which had induced him to 666 bring it forward. The Bill had for its object to simplify and facilitate the course of public justice, which had been hitherto in a most discreditable state. Under the present neglected state of our law, after the proceedings before the magistrate closed, it was left often to the ability or zeal of a private prosecutor whether the greatest criminal should be brought to justice, or whether he should, as was too frequently the case, escape with impunity. There was little doubt but, if the Bill became law, the country would be relieved from great and unnecessary expense; for under the present state of things, frivolous prosecutions were of frequent occurrence, by which expenses were multiplied exceedingly. Arrangements of the most scandalous kind were frequently made between the attorney who had charge of the prosecution, and the policeman who was bound to prosecute, and it constantly happened that the policeman did not discharge his duty, and was induced to overlook some material part of the evidence, and the criminal was thereby suffered to escape. He might quote two or three instances, which were of public notoriety, as strong proofs of the scandalous state of the existing law. The House must well remember, that a great trial took place in this country some years ago, which ended in a manner perfectly ridiculous—in a manner indeed, which would disgrace a Court of Quarter Sessions. He alluded to the case of a nobleman who was tried some years ago on a charge of fighting a duel. He did not mean to say that there might not have been very valid reasons for the acquittal of that nobleman, but this he would say, that the failure of the prosecution, for no other reason than that there was no identification of the person shot at, though there were two or three hundred individuals present, who could easily have identified him, was such an event as could not have occurred if the management of the case had been entrusted to a public prosecutor. He might instance another case, in which a person of high position was indicted and convicted of obtaining money under false pretences. A new trial was moved for, on the ground of the improper reception of a witness; but the prosecutor was poor, and could not support the expense of a new trial. Had there been a public prosecutor, it would have been impossible that so scandalous a thing could have occurred. The object of the present Bill was to withdraw from a 667 sphere of private animosity, caprice, and revenge that which ought never to be left to such chances, and to see that justice was properly administered. The main provision of the Bill proposed that the Crown should distribute the different circuits into a certain number of divisions, and appoint to each division a public prosecutor, who should hold office upon the tenure of good behaviour. In addition, he also proposed the appointment of district agents to collect and examine evidence, to transmit all cases to the public prosecutor for his opinion, and also to conduct the proceedings before the magistrates. He had thought it proper to add another clause to the Bill for the security of innocence, and he proposed that it should be in the power of any prisoner to send to the public prosecutor a list of the witnesses he proposed to call, not as to character, but those merely who could speak to any facts the prisoner thought material for his defence. The expenses of such witnesses should be allowed upon the certificate of the Judge that the witnesses were material. Nothing was more painful than to hear a wretched prisoner twenty miles away from home state before a Judge—"I could have called such and such a witness to prove that I was in such and such a place, but I am poor, and could not afford it, and the expense of remaining in an assize town is more than my friends could bear." Such a state of things was improper, and called for amendment. He had been reading carefully the sections in the Code Napoleon upon this subject, and he found that in France the Procureur General summoned, at his own risk, the witnesses of a prisoner, except those who were called to speak to character. In the preliminary discussions which took place upon that point, and in which the Emperor joined, the objection that was urged against that course was the danger of jobbing being perpetrated in calling witnesses as to character. To remove any objection of that nature, he (Mr. Phillimore) proposed that the expenses of a prisoner's witnesses should not be allowed, except upon the certificate of the Judge. He now wished to allude to a point in which the assistance of the district agents would be particularly valuable, and that was in acting as superintendents of the local police. He did not say the police were worse than any other body of men, but they often had temptations to act in an oppressive and violent manner, and those temptations were not always resisted. He thought it of the ut- 668 most importance that the minds of the English people should retain that love for the administration of justice, and that confidence in their own security, for which they had hitherto been distinguished from the people of other countries. The violence and oppression of the police in some cases tended very much to sour and poison the minds of the people, and he would, without mentioning names, quote an instance of improper conduct upon the part of the police, which occurred not long ago in London. The facts were these:—Two persons were disputing about a very old relation, and, in the absence of one, the other brought a constable and took away the relative in question, the policeman threatening to take into custody any servant who dared to leave the house or interfere in the matter. That was a state of things which ought not to be endured, and, if it could happen in London, it was much more likely to occur in remote districts. For the reasons he had now given, he thought there should be a change in the administration of the law; and that means should be taken to put the law itself upon a sounder, more liberal, and more enlightened footing, so that it should be enabled to correspond better with the exigencies of the age. They should not be content with making the Sovereign the nominal prosecutor, but they should recollect that a criminal offence was an offence against society, and that society was bound to interfere in administering justice to the offenders.
said, he fully approved of the measure proposed by the hon. and learned Member (Mr. Phillimore). In Scotland public prosecutors were appointed, and he had long been of opinion that the practice, if introduced into England, would be attended with great benefit.
THE ATTORNEY GENERAL
said, the subject which his hon. and learned Friend had brought before the House was one of great importance, and Her Majesty's Government certainly felt that an opportunity ought to be given to his hon. and learned Friend to bring in a Bill, in order that the matter might have ample discussion. At the same time, giving his hon. and learned Friend all the credit due for the measure he proposed, he did not think it was so perfect and complete as might be devised. He was ready to give the most careful consideration to the measure, and 669 he took this opportunity of saying that the matter was now under the most serious consideration of Her Majesty's Government, who felt that the principle of appointing a public prosecutor ought to be adopted.
§ MR. NAPIER
said, he must express his approval of the principle of appointing a public prosecutor, but he thought the object of the hon. and learned Gentleman might be attained without any statute whatever, as in Ireland, where Crown solicitors were appointed upon every circuit to conduct prosecutions. He thought the assistance of some properly-appointed person in investigating a case previous to bringing a party to trial was a matter for important consideration. He considered that a prosecution ought not to be left to the caprice or malice of a private prosecutor, who would not have the same responsibility and interest in arriving at the truth as a public prosecutor, but who would be frequently actuated by indirect motives. There were certain matters which he would suggest for the consideration of the House if the Bill came before them for further discussion. He thought that a plan should be devised which would make the system in this country act in complete harmony with that of Ireland, and he believed it of the greatest importance, whenever it was possible, to have a common system of procedure for both countries. In Ireland there were Crown solicitors for the circuit, and sessional prosecutors also, who were attorneys. Crown barristers prosecuted on the circuit, and had Crown solicitors under them. The circuit staff managed the most important business, and the sessional staff that of a more local character. It was his decided opinion that in the appointment of public prosecutors the public ought to have the best assistance that could be procured, and that it should be properly paid for. While on the subject of the administration of justice, he would beg to draw the attention of the House to the office of coroner. Speaking of Ireland, he could say that most unquestionably when the coroner interfered with the criminal department, justice was almost invariably obstructed. There was a great want of preliminary investigation by medical men in cases of a certain nature before they were sent for trial, and in many cases where parties had been convicted, it had been subsequently proved that no crime had in reality been perpetrated. With regard to coroners' inquests, during the last twenty years, about 670 50,000 had taken place in Ireland, in no one of which had the course of justice been assisted, but in more than one it had been seriously obstructed.
§ MR. HADFIELD
said, he approved of the Bill proposed by the hon. and learned Member, and thought that in any measure to be adopted provision should be made for having offences tried nearer the spot where they were committed, than they were at present.
§ MR. STUART WORTLEY
said, he rejoiced at the intimation which had been given by the hon. and learned Attorney General that this question, which he regarded as one of great importance, was under the consideration of Her Majesty's Government. They had many precedents and examples of institutions analogous to that which his hon. and learned Friend (Mr. Phillimore) proposed to establish, of public prosecutors. Without going to France or any foreign country, it was only necessary to refer to the machinery for carrying on the criminal jurisprudence in Ireland and Scotland, to find instances of the existence of such institutions. But with regard to the modes in which the preliminary investigation in criminal cases was conducted in the two countries, he must say that the mode pursued in Ireland was not such as to induce him to prefer the course indicated by his hon. and learned Friend (Mr. Napier) of refraining from legislating in the matter. And he altogether objected to the proposition of placing in the hands of the Attorney General of the Crown so large an amount of patronage as would attach to that office if the appointments were all left in his hands. Of the two examples which had been adduced of public prosecutors in Ireland and Scotland he certainly preferred that of the country with which he was connected, where the duty of making the preliminary investigation was in the hands of an officer known to the Scotch law as the procurator fiscal, who reported the result of his examination to the advocate depute in Edinburgh—an officer appointed by the Crown, and upon whose responsibility the prosecution was carried on or not. The necessity of some such measure for this country, no one who had had any experience of the administration of our criminal law could, he thought, for a moment doubt, for nothing could be more scandalous and mischievous than the negligent manner in which criminal prosecutions were at present conducted, nor anything more scandalous than the defeat of 671 justice in numerous cases that consequently resulted. His experience had also taught him that prosecutions were, in too many instances, brought for the mere purpose of gratifying animosity and revenge, and that in others corrupt motives induced their abandonment. Under these circumstances, he thought legislation on the subject absolutely necessary. With regard to the other point that had been referred to—the assisting of prisoners who had not the means of employing counsel, he must say that that was a subject of great difficulty, and he would not then dwell upon it, nor would he suggest to what extent the Government should go in remedying the evil. But he agreed with his hon. and learned Friend that nothing could be more painful to a judge or to the bystanders than to hear that a defence which might be true was behind, but that the prisoner at the bar, for want of means, could not adduce it. With these views, he congratulated his hon. and learned Friend in having drawn public attention to the subject. He believed that this was the only country in Europe that stood in the disgraceful position of having no public prosecutor. It was ludicrous to suppose that the coroner stood in the position of a public prosecutor, for, instead of assisting, he feared, as had been stated by his right hon. and learned Friend (Mr. Napier), that these functionaries often stood in the way of public justice.
§ MR. HENLEY
said, he rejoiced that the subject had been brought under the consideration of Parliament. He quite agreed with what had been said by the right hon. and learned Gentleman (Mr. S. Wortley), that the system that prevailed in Scotland was a better one than that which prevailed in Ireland. As regarded the giving the prisoner some means of defence, he did not object to the arrangement upon principle, but the matter required to be carefully looked into, and due precautions taken for the proper administration of justice. As regarded the office of coroner, he must observe, that he did not quite agree with the remarks of his right hon. and learned Friend. The coroner did not stand in the light of a public prosecutor, his duties were of a totally distinct nature, and he should not like to see the office done away with. In many cases where a crime had been committed the preliminary investigation before the coroner was calculated to further the ends of justice. As regarded the measure of the hon. and 672 learned Gentleman (Mr. Phillimore), he hoped to see it carried out to a successful issue.
§ MR. PHILIPPS
said, he wished to add his testimony as regarded the value and importance of this measure to what had been stated by the hon. Members who had preceded him. He confessed he was rather alarmed when he heard that a measure of the present character was under the consideration of the Government, as the legal reforms they had undertaken had seldom come to anything.
§ MR. ROSS MOORE
said, although they had in Ireland a public prosecutor, yet his experience of the working of the law had convinced him that the system was defective in one important and essential particular, the not providing a proper machinery for the preliminary investigation of cases brought forward for trial. The result had been that justice had been defeated, and that criminals had escaped in cases, where, if the machinery for the prosecution had been properly organised, the result would have been conviction. He would, at the same time, beg to refer to the mode in which prosecutions were carried on in Ireland, where it often happened, from the improper manner in which they were got up, that the prosecuting counsel only received his brief when the case was called on for trial, and consequently knew little or nothing of the facts and merits of the case.
§ MR. J. G. PHILLIMORE
, in reply, said, he was grateful for the manner in which the measure had been received by the House. He was delighted to hear that the Government intended to take up the matter, and, under these circumstances, he would cheerfully resign into the much abler hands of his hon. and learned Friend (the Attorney General) the conduct of the measure, his only hope being that the public good might be brought about in any way. His hope was that the time was come when, instead of policemen and jail attorneys, homines idonei atque integri causam reipublicœ legumque susciperent.
§ Leave given.
§ Bill ordered to be brought in by Mr. John George Phillimore and Mr. Hume.
§ Bill read 1°.