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Expenses Of Prosecutions

Volume 114: debated on Wednesday 19 February 1851

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SIR G. GREY moved for leave to bring in a Bill to amend the law relating to the expenses of prosecutions. His object was to make the law and practice more uniform as to the expenses, and to remedy some anomalies that now existed in regard to the apprehension and trial of offenders. The expenses of criminal prosecutions were regulated by the 7th George IV., cap. 61. They might be divided into three classes. The first class embraced the expenses of the preliminary proceedings before the magistrates, and previous to a committal, including compensation for trouble and loss of time to the witnesses. The second class consisted of the expenses of attending before the grand jury and at the trial at the assizes or sessions, and the expenses of the prosecutor in preparing the indictment, and carrying on the prosecution. The third class consisted partly of expenses, partly of rewards ordered by the court to parties active in the apprehension of offenders. As to the first class of expenses, they were now regulated simply by the certificate of the committing magistrate. Those in the second class were ascertained by an officer of the court, subject to regulations laid down by the magistrates at quarter-sessions, and approved of by the Judges at the assizes. As to the third class of expenses, there existed at present no power to make regulations, the payment depending on the discretion of the court. The effect of this state of the law had been to produce the greatest discrepancies in the amount of the expenses for criminal prosecutions in different counties. He last year called for a return of the amount of the expenses under these heads in all the counties and boroughs in England and Wales, and the result showed discrepancies far greater than could be accounted for by any circumstances peculiar to the different counties, and which must have arisen from the different discretion exercised by those who had the power in their respective jurisdictions of fixing the amount to be paid on account of such expenses. By the Bill he wished to intro-

duce, it was proposed to repeal the existing law with regard to these expenses, and to give a power to the Secretary of State to regulate them. As to the preliminary expenses—namely, those previous to committal—it was intended that they should still be certified by the magistrates, but that the certificate should not be final. The ordinary payments for the apprehension of offenders, would be reduced to a uniform scale, but the court would still retain the power of granting rewards for extraordinary courage and activity. By a subsequent clause in the Bill, the justices in quarter-sessions would be empowered, if they should think fit, to recommend that clerks of the peace should be paid by a salary instead of by fees. He had not thought it right to lay down an inflexible rule in that matter, but to leave it to the judgment of the magistrates in quarter-sessions whether they would recommend such a change to the Secretary of State, who, in that case, was to have the power to fix the amount of salary to be paid, provided it did not exceed the amount recommended by the magistrates. Clerks to the justices of peace would also be prohibited from being concerned in conducting any prosecution that had arisen out of examinations taken before such justices. There were other provisions in the Bill, which he would only shortly advert to. One of them related to the Central Criminal Court. When that court was established by 4 & 5 William IV., c. 36, jurisdiction was taken away in a variety of cases from the courts of quarter-sessions held within the district of the Central Criminal Court. The effect of this had been that at the Westminster Sessions, although presided over by a learned and highly-qualified Judge, certain cases could not be tried, notwithstanding similar cases were being tried every day in the courts of quarter-sessions in every other part of the kingdom. Delay in the administration of justice, as well as expense, was found to result from this arrangement. He therefore proposed to repeal so much of the Act as restricted the cases cognisable by the quarter-sessions within the district of the Central Criminal Court, and restore to those courts the same jurisdiction as was now exercised by the quarter-sessions in every other part of the country. The Bill also contained a provision for remedying inconveniences connected with the practice of backing warrants in the Channel Islands. Another circumstance had been pointed out to him

as being productive of considerable trouble, expense, and delay. There were certain towns and cities which, were counties of themselves, but in which no assizes were held, those places not being considered counties for such a purpose. Persons charged with offences in those towns and cities were committed by the magistrates to the gaol within the jurisdiction of such towns or cities, and could not be removed for trial at the assizes of the adjoining county—until a habeas corpus had been sued out, with considerable inconvenience and delay. It was proposed to give the magistrates of those towns and cities power to commit prisoners at once to take their trial at the assizes held in the adjoining county; and the removal of the prisoners from the gaol of the county, of a city or town, would then take place as a matter of course without any writ.

wished to know whether the Bill was intended to apply to Scotland? The present system entailed very heavy expenses on that country, and he was afraid those expenses were likely to be increased by a resolution of the Treasury to pay by salaries instead of fees.

said, there was one point in the right hon. Baronet's speech which ought to be considered: that was, the allowing differences to exist in different counties with regard to the payment of officers connected with public prosecutions. If hon. Gentlemen would take the trouble to read the evidence given before the Committee of the hon. Member for Manchester, they would see that the evidence of the chief constable of Stockport was directed entirely to that point, and threw much light upon it. That was a subject of the greatest possible importance; and during the progress of the Bill, he should use his best exertions to provide a remedy for the evil, for he could not think the right hon. Gentleman the Home Secretary would allow one rule, to obtain in Lancashire, and another in Cheshire, instead of providing, as he ought, that clerks of the peace should be placed on the same footing in every part of the kingdom. He (Mr. Hume) would suggest that the right hon. Gentleman should repeal all the present Bills relating to prosecutions, and bring forward one single measure relating to that question, for at present the law was so exceedingly complicated that none but a lawyer could understand it. A Bill of that nature would be of immense importance, and would greatly facilitate the proceedings, while it would considerably lessen the expenses of criminal prosecutions.

agreed with the hon. Member for Peebles-shire, that it was of considerable importance to know whether this measure was to extend to Scotland. But the object for which he principally rose, was to notice a point which had not yet been adverted to—namely, the necessity of making some provision, not for the regulation of the expenses of, but for the conducting of prosecutions. The existing system was an extremely defective one. How it was to be remedied might require much consideration; but, as it was, it placed not only the Judge but the administration of justice in the greatest jeopardy. In a great majority of cases there was no one responsible for the prosecution. The depositions were placed in the hands of the Judge, who had no previous knowledge of the case, and had to extract the facts from the depositions as well as he could. It was said, that the Judge ought to be the counsel of the accused; but he differed from that maxim, and thought the Judge should hold himself impartial between the accused and the accuser. The Judge was now, however, placed in a peculiar position from being obliged to rely on the depositions for the prosecution; and it very often lengthened the trial, as the Judge could not know to what points he ought to direct his attention. He (Mr. Wortley) knew cases where such confusion arose from the depositions, that prisoners of whose guilt there could be no doubt had escaped. He was aware that the observations he was making tended to the creation of a public prosecutor; but he did not believe it would be necessary to go to such an extent, though he was decidedly of opinion there ought to be some person to see the depositions were in a proper form, and that the case was properly brought before the jury. As to the expenses of grand jury cases, his experience induced him to think it very doubtful whether they could hope for any decided saving without a change in the system. The Chief Justice of the Common Pleas had introduced some alterations which worked well, and some expense might be saved in those districts where there were stipendiary magistrates.

said, with regard to the observations of the hon. Member for Montrose, he had to assure him that the Bill provided a limitation of the expenses of prosecutions; and in reply to the question put by the hon. Member for Peebles-shire, he had to state that Scotland did not come within the purpose of the Bill. In some respects Scotland had an advantage over England in the matter of prosecutions. For instance, owing to the difference between the law of Scotland and England, certain offences were tried before the sheriff-substitute, which in England would go before a grand jury. With respect to the remarks that had been addressed to the House by the right hon. and learned Gentleman the Member for Buteshire, the difficulty was to attain the end which the right hon. Gentleman had in view without establishing a public prosecutor. His right hon. Friend know that there was great difficulty connected with the question of a public prosecutor, in relation to the loss to which the establishing such an officer would subject gentlemen of the bar and attorneys whose professional practice chiefly depended on their attendance on assize circuits, and at sessions.

said, the public were undoubtedly indebted to the Government for bringing forward the Bill, dealing as it did with a very important subject. It was a question on which much difference of opinion existed as to magistrates' clerks being concerned in criminal prosecutions. If the right hon. Gentleman the Secretary of State for the Home Department thought that provision should be made to prohibit magistrates' clerks from being connected in the prosecution of cases heard originally before the magistrates to whom they acted as clerks, he must of necessity do something with respect to the proceedings of public prosecutions, which were now brought before the courts so imperfectly that their miscarriage frequently occurred. With reference to the question of a public prosecutor, he (Mr. Henley) was certain that to prevent the miscarriage of public prosecutions, something must be done in that direction.

Leave given; Bill brought in by Sir G. Grey, Mr. Attorney General, and Mr. Solicitor General.