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LAW MAGAZINE AND REVIEW.
No. CCXXXVIII.—NovEMBER, 1880.
I.——_]URISPRUDENCE AND THE AMENDMENT OF THE LAVV.*
TWO subjects connected with criminal law administra
tion have lately engaged the attention of jurists and public men, the establishment throughout the United Kingdom of the system of public prosecutions and the preparation and enactment of a criminal code. In Scotland the prosecution of criminals has always been recognised as one of the duties of the State, and our criminal law administration, which has been matured and perfected by the experience of many generations of Crown lawyers, possesses the confidence of the public, and satisfies the requirements of the country.
In recommending the study of the Scotch Criminal Administration to the attention of English juristsl do not wish to represent it as an absolutely perfect system, nor do I think that it could be extended in its entirety to the sister country, with its enormous population and complicated local institutions. But the principles of Public Criminal Law Administration must necessarily be the same for both divisions of the Kingdom, and these principles can best be studied as exemplified in practice under
* The Address delivered by The Right Honourable John McLaren, Q C., Lord Advocate, as‘ President of the jurisprudence Department, Social Science Congress, Edinburgh, Oct. 7th. Revised by the Author.
a departmental system, which has stood the test of experience.
The practice of the Scotch criminal department might form the subject of an interesting contribution to the proceedings of the association. In this addressl shall only touch upon it, with the view of indicating the essential elements of a good general system of public prosecutions applicable to the United Kingdom.
The chief merit of the Scotch system is that it accords in large measure independence of action to the local prosecutors, while ensuring responsibility to the State, by placing them in direct and daily correspondence with the central department of the Crown ofiice. For the purposes of jurisdiction the country is divided into four circuits, each under the direction of a practising barrister, and in each county there is a Procurator Fiscal, or public prosecutor, usually a practising solicitor with one or more assistants. The Procurator Fiscal is appointed by the Sheriff subject to the approval of the Secretary of State, and holds office for life. He enjoys, therefore, the same independence of local influence which the law rightly ‘accords to judges and magistrates. At the same time he is required to report all cases, except police offences, to the Crown counsel of his circuit, who decides whether the case is to be prosecuted, and if so, in what court. The Advocate Depute or counsel of the circuit in cases of difficulty or importance consults with the law officers of the Crown, who are responsible to Parliament. The duties of the Procurator Fiscal include the investigation of all cases of sudden death or accident resulting in injury to the person, whether arising from criminal negligence or accidental causes. Under this system the investigation of criminal offences and the proceedings preparatory to criminal prosecution are placed beyond the control of popular influence in the local sense, while subjected to strict ofiicial supervision and to the control of public opinion acting in accordance with the Constitution. The conduct of prosecutions is entrusted to the same ofiicers. The Procurator Fiscal conducts personally the prosecution in the Sheriffs Criminal Court. The Advocates Depute, assisted, when necessary, by the law officers, conduct the prosecutions in the Court of Justiciary, or the Supreme Criminal Court, upon information furnished by the Procurators Fiscal for the respective counties, who get up the cases and attend as solicitors at the trials.
In extending the system of public prosecutions to England, the problem is, how to take advantage of the existing local machinery and to subject its officers to departmental control while maintaining as far as possible their local independence. In theory the criminal jurisprudence of England imposes upon the injured party theobligation of prosecuting offenders before the proper court, the judges of the High Court of Justice, or the Quarter Sessions, as the case may be. But the investigation of the cases and the preparations for trial are to a large extent and in the great centres of population
‘almost entirely left to the police, who, I believe, peform the
duties entrusted to them with fidelity and efficiency. Solicitors and counsel are of course employed to contest prosecutions in court, and, as I understand, their professional fees are paid by the Treasury in cases where the police are the prosecutors. If I were to attempt to carry out the Scotch system in England in a form suited to existing arrangements, I should make a beginning in the larger counties, by separating the functions of Chief Constable and Public Prosecutor, giving the latter ofiice to a solicitor, and making it part of his duty to conduct prosecutions before the Quarter Sessions. The next step would be to assign the conduct of prosecutions at the assizes to a single counsel for each circuit, instead of dividing the briefs as at present among the younger men practising on the Crown side of the Court. The prosecuting counsel would in important cases be consulted before the trial, and after the profession had become accustomed to the system of public prosecutions, the prosecuting counsel would be associated in a legal department and made responsible for the general criminal business of their respective circuits. A step has already been taken towards the organisation of this department of the public service, by the appointment of a director of public prosecutions for England ; but I have not heard that this new department proposes to adopt the Scotch system, and I do not know of any question on which an expression of opinion from this association might be productive of more useful results than this question of public prosecutions. It certainly strikes a Scotchman as singular that English lawyers should be engaged in investigating this problem upon first principles, as if it had never been attempted before, when if they look north of the Tweed they would find it practically solved to the satisfaction of the community and with the result that private prosecutions are as completely affairs of the past, as those private wars which flourished under the social conditions prevailing in Scotland until the middle of the last centuary. If English lawyers have much to learn from our system in the department of Criminal Procedure, Scotchmen may with advantage receive instruction from the eminent jurists of England, with reference to the consolidation and codification of the criminal law. The criminal jurisprudence of Scotland is like the common law ofthe sister country founded on custom and the decisions of the judges. No authoritative statement of its principles has ever been promulgated in writing. Its definitions are to be found in the commentaries of judges and advocates ; its sanction is supposed to be the conscience of the community, its clasification of offences is purely arbitrary. Arbitrary punishment, in fact as well as in name, dominates the whole category of criminal law in Scotland, with the exception of those crimes, now practically reduced to one, which the common law punishes by death. The elasticity of the criminal law of Scotland has been muchvaunted by our judges and jurists; my professional sympathies incline me to their view, and I hold with my profession that our judges and commentators have done their work well. But, as a citizen, I cannot forget that this elasticity of the criminal law has in past times and possibly within the memory of living men, been an instrument of the grossest oppression. Men have been tried and have suflered proscription and exile for taking part in public discussions such as are carried on not only with impunity but with acknowledged advantage in the political assemblages of our own time, and even at the sittings of this non-political association. I will venture to say that if the learned paper on Parliamentary Representation which was read last year
-in this department of the Social Science Association had
been spoken at a public meeting in Scotland eighty years ago, the author would have read with great alarm the deliverances of the learned judges with reference to the criminality of attempts to alter the constitution of Parliament as by law established.
My reverence for our national system of criminal jurisprudence must not blind me to the fact that an unwritten criminal law, with its attributes of elasticity and adaptability to new forms of crime, is not peculiar to Scotland. Such a system once existed in England and very distinct traces of it remain to this day. Some of the most ordinary offences are in England indictable at common law, though the practice is to found the charges upon a statute in almost all cases. It is rightly held in England that the administration of the criminal law will most commend itself to the approval of the honest and law abiding portion ofthe community, when the judge is in a position to point to the very statute which has been broken, and when the public,