§ LORD KINNAIRD
wished to bring under the notice of the Government the state of the law in Scotland with respect to inquiry into cases of sudden or accidental death. In England coroners' inquests were held under such circumstances, but he was not prepared to say that that mode of inquiry was altogether satisfactory; indeed, in many districts in England it was very unsatisfactory; and it was within his own knowledge, as a member of the Mines Commission, that in many of the mining districts the jury consisted of mining agents, or, as they were termed, "mine captains," whose policy was to bring in no verdict contrary to the interests of the mine-owners, and during the time that he sat on the Commission, though the accidents were fearfully numerous, the verdict was uniformly ''accidental death." Nor was this surprising, when not only the jury but frequently the coroner also was interested in mines. The accidents from the bursting of boilers were very frequent, there being in many eases no steam guage, and the boilers being worked till they became so thin that he had seen them almost palpitating under the pressure of the steam. In one case in which two deaths occurred, the boiler was third-hand, having been worked in two mines, and having then been purchased by another set of mine-owners, though well known to be dangerous. Notwithstanding the strong evidence of the imperfect state of the boiler, and of the men having expected an accident, a verdict of "accidental death" was returned. While doubting, for these reasons, whether the principle of coroners' inquests should be applied to Scotland, he thought it important that there should be some public inquiry. At present no inquiry was made into cases of sudden death, or death from accident, unless it was brought under the notice of the public prosecutor, or Procurator Fiscal, whose duty it then was to make inquiry. It thus depended on the vigilance of the police, or on the chance of his hearing 567 of the, accident, whether an inquiry was instituted, and numerous deaths occurred of which no notice was taken. An accident which occurred on the 6th of November last, on the North British Railway, had appeared to him to present an opportunity of drawing: attention to the subject—more especially as an inquiry was now going on with regard to the Scotch system of judicature. In this case there had been an investigation by the Railway Department of the Board of Trade, and doubtless also by the Procurator Fiscal. St. Boswell's was a station where seventeen trains ran daily each way; and Mr. Lisle, a tradesman, who was on a journey for the purpose of visiting his daughter, from want of proper accommodation, had to cross the line in order to change carriages. "While so doing a train threw him down and so seriously injured him that, while being carried away, he expired. The station-master, six of the company's servants, and several passengers were on the platform at the time, but it could not be ascertained that any of them saw him crossing the line—and, indeed, it never happened that railway officials, when inquiry was made, had seen anything. The report added that the accommodation at the station was inadequate to the traffic carried on upon the railway. What had been the result? The railway company had done nothing, although the state of things at this station was notoriously bad; and the Board of Trade had no power to enforce any order, or to compel the company to improve the station. The noble Lord concluded by moving for a Report of proceedings taken by the legal authorities of the district of St. Boswell's. N. B., with reference to the death of Sir. Lisle, who was killed on the North British Railway on the night of the 6th of November, 1868.
THE EARL OF MORLEY
said, there would be no objection to furnish the Report for which the noble Lord just moved. The accident occurred on the 6th of November, and next day information in the usual form was sent to the Board of Trade, and ten days afterwards the Crown. Counsel at Edinburgh instructed the Procurator Fiscal that it was not a case in which criminal proceedings should be instituted, but directing him to communicate to the company that there was a want of proper accommodation at the station. On the 26th of December the 568 Board of Trade applied for the evidence taken before the Procurator Fiscal; so that no delay had occurred in the matter. The inquiry was found to have been conducted in the most excellent manner, and the decision was clearly a correct one. Under these circumstances, the; case rather tended in favour of the Scotch system, which might, he thought, compare favourably with the inquiries conducted in England under similar circumstances. There was no power to compel the railway company to provide proper accommodation; but, if they neglected to do so after the warning given by the Procurator Fiscal, it might be of serious consequence to the company if any future accident occurred. He had been told on the best authority that there was scarcely an authenticated instance of any sudden death in Scotland occurring that was not inquired into, or of any abuse arising through the inquiry being conducted in secret. If they referred to the returns of the proportion of persons convicted to the whole number tried, it would be found that in Scotland, in the year 1867, the proportion was 89 per cent, while in England it was only 74 per cent. The onus of showing that the Scotch system did not work well was thus rather upon those who wished to alter it than upon those whose duty it was to defend it.
THE EARL OF DALHOUSIE
held that something was to be said in favour of the Scotch system, though probably it admitted of improvement. It was the duty of the Procurator Fiscal to take cognizance of all deaths from accident and sudden deaths, if they came to his knowledge; but it was well known that many cases of sudden death and death from accident occurred which ought to be inquired into, but which never came to the knowledge of the Procurator Fiscal. That system was upon the whole a very good one, but it might be very much improved if a law were passed to make it compulsory on parties, upon the occurrence of any fatal accident, to report to the Procurator Fiscal, so that he might inquire into the cause. If that were done no accident could occur without due inquiry, and at the same time the inquiry would be made without injury to the feelings of the parties concerned. He hoped that the Lord Advocate would call the attention of the Law Commission to the subject. If there 569 were some compulsory means of bringing these matters to the knowledge of the Procurator Fiscal that was all that was required to amend the law of Scotland on this subject.
THE DUKE OF MONTROSE
said, he did not think it would answer to make it penal to give notice to the Procurator Fiscal.
THE DUKE OF MONTROSE
He did not see that there was much difference between the two. In England the coroner got fees for holding the inquest, while the Procurator Fiscal had not the same inducement. The result was, that in England inquiries were instituted which, if due regard had been had to the feelings of the survivors, might very well be spared. The law in Scotland depended very much upon the Procurator Fiscal. In cases where he was a very active man few or no cases escaped inquiry; but where he was old or negligent, he was tempted to abstain from making inquiries from which he derived no pecuniary benefit.
§ THE EARL OF MINTO
said, he was glad his noble Friend (Lord Kinnaird) had brought this matter under their Lordships' notice. The first steps of criminal proceedings in Scotland were taken entirely in secret, and his firm conviction was, if the matter were thoroughly investigated, great advantage would be found in the system of publicity There would be much less chance of abuse if those proceedings took place before the eyes of the public. Some evidence was taken on this subject incidentally last year by a Committee of which he was a Member; but, as it was felt they were getting rather beyond the fair scope of their inquiry, it was not thought proper to pursue the investigation. The chief constable of the county of Ayr, among others, was examined, and stated that he considered great public benefit was missed by not having inquiries into cases of sudden death. These cases were not overlooked—they were carefully inquired into—but the public knew nothing of the facts. It was quite possible to have a good system of public prosecution—which was most valuable in Scotland—and at the same time to give publicity to the earlier proceedings. Mr. Jamieson, a practitioner in the Sheriff's Court. Elgin, thought the system of private 570 precognitions should be altered, and that all inquiries should be made before the magistrates sitting in open court. The sheriff of Aberdeen, who, in some respects, was in favour of the present system of private precognition, thought that in cases of sudden death publicity was most desirable. They might have all the benefit of coroners' inquests without their abuses. The principle of having public prosecutors in Scotland was most admirable; but the office of Procurator Fiscal was one not only of importance, but great delicacy; it was, therefore, to be regretted that, with the exception of Edinburgh, Glasgow, Dundee, and four other places in Scotland, these officers were allowed to accept private agencies and acted as legal advisers in their capacity as lawyers. He had been told of a case in which an assault had been committed with a deadly weapon: the public prosecutor happened to be the private law agent of the offender; nothing more was heard of the case. Of course the comments of the public were uncomplimentary. In another case a horse was stolen; an action was raised for delivery of the horse or payment of the price. The public prosecutor entered an appearance for the horse stealer and defended him. These facts showed that there were ample grounds for inquiry into the whole of this subject.
§ LORD COLONSAY
thought the suggestions which had been thrown out by his noble Friend were valuable; but the office of public prosecutor in Scotland, as an institution for investigating and discovering crime, for the prevention of crime and the preservation of the peace, was a most valuable one. It was a very grave question whether any material interference could be made with the existing system without producing unsatisfactory results. The whole system hung together, and it was a system gene- rally approved, practically useful, and which had long existed; no part of Her Majesty's dominions could boast of more successful means for the detection and prevention of crime. It was a very serious tiling indeed, therefore, to open this large question or do anything that would tend to throw discredit on such a system. At the same time he was not going to defend abuses. If there really was an unworthy officer who did not execute his duties properly there were the means of dealing with him. That was no objection to 571 the system; it was an individual case which might happen under any system. If the whole investigation into crime with a view to its discovery or prevention, and to the preservation of the peace, were made public that would be uprooting a beneficial part of the present system, and might often frustrate the ends of justice. A system prevailed in England different from that in Scotland, and they had heard from the noble Earl (the Earl of Morley) the practical results. With regard to the particular ease of the railway accident in question, no benefit could have been derived from a public inquiry. The investigation had been complete, and machinery was immediately set in motion to have such improvements made in the railway station as would prevent such accidents in future. As to whether this matter was within the range of the Commission which had been referred to, he should say, speaking for himself alone, that an inquiry into the whole system of public prosecutor in Scotland was not within the scope of the Commission. If the duty of inquiring into and reporting on that system was intended to be devolved on any Commission, it would certainly have been expressed and not left to inference. But some matters connected with the system did come incidentally before the Commission, and evidence in regard to these matters had been taken and would accompany the Report.
§ LORD KINNAIRD
agreed with the noble and learned Lord as to the advantage of the system of public prosecutor in Scotland; but in it, as in all other things, amendments might be made. For instance, the public prosecutor ought not to be allowed to continue private practice. It was represented as an advantage that the inquiry in this case had been immediate; but he did not believe that any individuals, except the officers of the Crown, were aware of the investigation. If it had been known that an inquiry was being made, the relatives might have been able to produce evidence with regard to the death of the man and to the state of the railway station.
§ Motion agreed to. (Parl. P. 118.)
§ House adjourned at Seven o'clock, to Thursday next, a quarter before Four o'clock.