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LAW MAGAZINE AND REVIEW.
No. CCXXXIX.-FEBRUARY, 1881.
1.-CROWN PROSECUTIONS: RIGHT OF
TRITERS on the practice of the Criminal Law and on
the Law of Evidence, as administered in England, inform us that in the case of public prosecutions, whether for felony or misdemeanour, instituted by the Crown, the Law Officers of the Crown, and those who represent them, enjoy as their peculiar privilege or prerogative, the right of a general reply, although no evidence be adduced on the part of the defendant.
It is unnecessary to remind the professional reader that no such privilege is enjoyed by the prosecuting counsel in an ordinary criminal case; and to those who have had much experience of Criminal Courts, especially in the conduct of defences, the importance attached to the possession of the “last word," and the devices resorted to, and the miscarriages of justice that sometimes happen in the effort to secure it, are well known. The law officers and their representatives, therefore, seldom appear as prosecutors without having their privilege challenged, and at least a protest entered against its exercise, though the Judges—whatever their opinions about the justice or expedience of the claim - being bound by “immemorial usage,” are generally obliged to decide in favour of "privilege.” The objectors, however, are encouraged in their course by the fact that the Judges have not adopted one uniform rule on
this subject, and are not quite agreed either as to the cases in which, or the persons to whom, the privilege is applicable ; for, while the majority of them have held that the law officers and those who represent them were entitled to the privilege, others, such as Mr. Baron Martin and Mr. Justice Byles, have restricted it to the Attorney-General of England in person, and declined to accord it to the Attorney-General of the County Palatine of Lancaster-even when prosecuting within that County.
In former times, when this privilege was but seldom claimed, its exercise was scarcely felt to be a public grievance. But the circle of privilege has been gradually widening, and from the Attorney-General it has got to the Solicitor-General, and from them to any one who says he represents the Attorney-General: from the strictly criminal cases to cases in the Exchequer in which the Crown is concerned (6 Ex. 464), and now, under the Prosecution of Offences Act, 1879, Lord Justice Bramwell has held that the privilege of the reply may be claimed in a case instituted by the Director of Public Prosecutions, under the direction of the Attorney-General (case of the Directors of the Northern Counties of England Fire Insurance Company, tried at Manchester Summer Assizes, 1880). The grievance, therefore, seems to have become sufficiently frequent and wide-spread, and the champions of privilege sufficiently loud in their demands, to justify us in directing attention to the subject, and inquiring into the grounds for its existence. A crime being a violation of a right, considered in reference to its effect on the community at large, and one of the professed objects of the institution of Civil Government being the maintenance of the order and conservation of the peace of the community, the prosecution and punishment of crime would seem to be one of the primary duties attaching to the Crown, whose peace has been infringed, and whom therefore such offences chiefly concern. The
offence is not against the individual injured, but against the community or State, and therefore a prosecution should be instituted, not by the individual, but on behalf of the State by its own officer. Such a duty has, indeed, been recognised and acted on by most States, but in England only to a limited extent; criminal proceedings here being “as the general rule, instituted at the instance of a private prosecutor, that is to say, either by the person who has himself been the subject of the offence, or (in the case of misbehaviour, punishable by the infliction of a penalty) by some common informer for the sake of money; and it is only occasionally that the Crown interferes directly, and that the alleged offender is prosecuted by the Treasury, and the Attorney-General directed to conduct it” (Stephen's Commentaries, vol. 4, p. 376). For though the Sovereign lends the sanction of her name to a prosecutor whenever there is sufficient ground for instituting a criminal suit, that is about the utmost she affords him ; he cannot even file an information through the Master of the Crown Office, in the case of “gross misdemeanours," without incurring expense as well as trouble, and in ordinary cases finds his firmest ally in Policeman X.
A system of law that has grown up so gradually as that of England has-composed of so many different elements, and into which custom enters so largely, is tolerably certain to exhibit some anomalies in the eyes of the “Scientists." As Bacon has put it—" Like as waters do take tinctures and tastes from the soils through which they run, so do civil laws vary according to the regions and governments where they are planted, though they proceed from the same fountain." And the English being essentially a practical people, as M. Taine has pointed out, prone to the study of facts rather than fancies and theories, the writers on English law, when laying down its theory and reducing its principles to the hard and fast lines of the civilians, are ever and anon
thwarted in their efforts by the irrepressible “immemorial usage ”—and thus we often find that “the philosophers advance many things that appear beautiful in discourse, but lie out of the road of use" (Advancement of Learning, book 1, chap. 3). Though, therefore, in theory, the commission of any crime is an outrage on the entire community, and, as such, ought to be prosecuted by the officers of the State as representing the public, still, in practice and in fact, it is not so recognised in England. When A. has his handkerchief or his watch stolen from him, it is seen that although the entire community ought to feel aggrieved, and forthwith proceed to vindicate its broken peace and security, practically, it takes but little interest in it, and is not visibly affected thereby. The State, therefore, while theoretically disapproving the thief's action, leaves the particular unit of the community, who has been more particularly personally aggrieved, to make his complaint to the typical Policeman X, who, in the end, is probably bound over to prosecute, and in the majority of cases discharges the functions of a Public Prosecutor at a very modest outlay on the part of the public. Particular kinds of crime, however, seem to have the effect of perturbing and calling into action several units, and then an outraged community is represented by some association or society, whose professed anxiety may be to suppress vice; or to protect the female sex; or to save donkeys and other animals from undue cudgelling or overpersuasion on the part of their drivers. But it is only in a very few instances, and in the case of atrocious crimes and great commercial or social frauds, that the community, as represented by the State, awakes to a consciousness that its interests are in jeopardy, and becomes sufficiently agitated or affected as a whole to take practical action by the hands of the Treasury officers. That this is no exaggerated picture of the present condition of public prosecutions in this country, will sufficiently appear from
the following description of the cases that are taken up by the Treasury, extracted from the speech of Sir R. A. Cross (then Home Secretary), on the discussion of the Prosecution of Offences Bill, 1879:-“If,” he says, “there now is a case which is supposed to be an important one, an application is made to the Secretary of State to take it up as a Government prosecution, and, if it is decided to do so, an order is at once made to consult the Solicitor to the Treasury; and at the present moment there are a number of prosecutions that, either by law or practice, the Secretary of State may require the Treasury Solicitor to take up. The Attorney-General is, therefore, practically a Public Prosecutor" (Parl. Debates, vol. 244, p. 973).
The practical outcome of all this has been that, except in those few “important" cases which attain the dignity of public prosecutions under the care of an official who is “practically a Public Prosecutor" (the number of cases prosecuted annually by the Treasury, exclusive of Mint cases, being considerably under 200, out of a total of nearly 15,000), crimes, as a rule, have hitherto been dealt with as matters that concerned only the person aggrieved and the accused, and have been placed on much the same footing as a civil action. Even now, with a Director of Public Prosecutions, the condition of affairs, though nominally improved, is no better.
At the time of the passing of the “Prosecution of Offences Act, 1879,” the unsatisfactory condition of the subject was admitted by all parties, and the duty of the State to provide for the due prosecution of all offences insisted on. In 1834, in 1854 and 1855, and in 1873, committees had sat upon the subject and reported strongly in favour of the appointment of a Public Prosecutor, and the Lord Chief Justice of England had declared his views as to the duty of the State à propos of the prosecution of crime. And yet the whole result of their deliberations is this:-" It shall be the duty of the Director of Public Prosecutions, under