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the superintendence of the Attorney-General, to institute, undertake, or carry on such criminal proceedings ” . . . “as may be, for the time being, prescribed by regulations under this Act, or may be directed in a special case by the Attorney-General." “The regulations under this Act shall provide for the Director of Public Prosecutions taking action in cases which appear to be of importance or difficulty, or in which special circumstances, or the refusal or failure of a person to proceed with a prosecution, appear to render the action of such Director necessary to secure the due prosecution of an offender ” (sec. 2). Section 6 provides, that when the Director of Public Prosecutions abandons, or neglects to carry on, any criminal proceeding undertaken by him, the aggrieved parties may, under certain conditions, proceed with them, and sec. 7 enacts, “that nothing in this Act shall interfere with the right of any person to institute, undertake, or carry on any criminal proceeding.” We have thus nominally taken a step in the right direction in appointing a Director of Public Prosecutions. But this Director is himself to be directed by the Attorney-General, and to be subject to his regulations, he being still apparently what he was formerly described to be —“ practically a Public Prosecutor.” And when we come to enquire into the nature of the public prosecutions that are to be directed by him, the delusion is at once dispelled, and we find ourselves face to face with our old friends under a new name. He is simply to direct the cases of “importance or difficulty,” or that contain “special circumstances” and the other ingredients that mark the “number of prosecutions that, either by law or practice, the Secretary of State may require the Treasury Solicitor to take up,” to use the words of Sir R. A. Cross, in the speech already referred to. The class of cases deemed worthy of the dignity of “ public prosecutions” will thus remain nearly as limited as before; while under sec. 6, there is the possibility of the undignified spectacle of criminal proceedings being carried on after they have been abandoned, or after a refusal to undertake them, by the Director of Public Prosecutions, and even in spite of him. Indeed, this last contingency has already actually been realized at the last August Sessions of the Central Criminal Court, when a man named Gudotti, after a coroner’s jury had returned a verdict of “accidental death,” and the Public Prosecutor had declined to take up the case as one not proper to be prosecuted at all, was arraigned on a charge of manslaughter. Mr. Commissioner Kerr characterised the prosecution as wholly unnecessary, and costing the country a sum of money that might have been saved, and intimated, that if a similar case came before him again he should disallow the costs, unless the Public Prosecutor had charge of it. He would, he said, set his face against unnecessary prosecutions by private prosecutors, and the police must understand that they must not take it upon themselves with solicitors to prefer charges, simply because of the bill of costs that would result. The whole of the change effected by the Act of I879, reminds one very much of the scene depicted in Punch, during the early stages of the Afghan war, where some of the members of a Highland regiment were seen lying at their ease in the sun in the back-ground “ daein naething,” as described by the sergeant, who further expressed his intention of sending up some more of the men to help them to do it.
We have, in short, begun our reformation at the wrong end, by erecting the head of a department before we have got the department itself:—a director who, as yet, has nobody to direct. We have ornamented and gilded the top of the structure, and neglected the lower portions where all the mischief lay, and where all the fraud and “putting on the screw,” the debt collecting, and the compromising are done, and where alone they are possible.
We are thus no nearer the practical realization of a Public Prosecutor than before ; and, as pointed out by the present Home Secretary (Sir W. V. Harcourt) while discussing the Bill of 1879, there can be no satisfactory administration of justice, unless we have something like a Procurator Fiscal, such as exists in Scotland, who is responsible for all prosecutions.
No one could, of course, object to the State being relieved of its duty by means of voluntary effort, and the public purse being, to that extent, spared. But private individuals or societies, unlike those boroughs where the municipal authorities have undertaken the duty, which is efiiciently carried out by a properly qualified officer, are under no obligation to take up every case, even of the kind they have taken peculiarly under their protection, and, among those they choose to take up, their zeal is not always tempered by discretion—their enthusiasm has even been known to occasionally eventuate in prosecutions that might be described as “harassing.” Enthusiasts may err by doing too much as well as too little, and the champions of virtue have, sometimes, by ill-timed action, been the means of gaining currency for, and giving notoriety to, a class of literature that otherwise might have remained in not unmerited obscurity. The existence of these associations, therefore, even when they keep within bounds, is no more an argument against the establishment of Public Prosecutors, than the existence of voluntary schools was against the establishment of School Boards and compulsory education. It is even open to individuals to make use of the present system merely to vent their spleen, or to turn the Criminal Courts to the purposes of fraud and extortion, and convenient substitutes for large or small debt Courts; while in very many cases they are apt to be too lax and rather “bear the ills they have, than fly to others that they know not of,” in the shape of worry and expense ; and thus it comes to pass (as writers of acknowledged authority have pointed out) that many crimes have gone unpunished.
Some, while admitting the evils resulting from the present system, have urged that the change to Public Prosecutors would be too sweeping and sudden, and have suggested the adoption of gradual and tentative measures, ‘which seems very much like suggesting to a man whose limb must be amputated that it would be better to have it done piecemeal, as then he would not miss it so much. The expense has been the bugbear of many—though other countries have willingly faced it, and it has not been shown that it would necessarily be much increased—while a few have taken refuge in that last resource of the supporters of a hopeless cause—that it is “ un-English.”
This practical refusal of the facts of English criminal law and practice to accommodate themselves to theories, in the framing of which they have not been consulted, has manifested itself throughout. The whole spirit of the English system of criminal procedure has been to regard a criminal trial as in form a public inquiry, but in substance and in spirit a mere litigation between the prosecutor and the accused (Vida Mr. Justice Stephen’s General View of the Criminal Law). The ordeal among the Anglo-Saxons, and the appeal of the Normans, were to all intents and purposes private lawsuits ; and there being no public officer whose duty it was to prepare the evidence, &c., against the criminal, the task was left to those who felt aggrieved and wished to bring the criminal tojustice.
Under a system which thus left every one to look after his own interests, a criminal trial might be the result of a complaint by an individual accuser, as the person aggrieved, which was the method of trial by Appeal; or the accusation might be by common report or general knowledge of the public, as indictments and presentments in fact were, and, in theory, still are, and where the King or Government were personally and directly aggrieved, by Information and Impeachment.
In an appeal of felony, the individual accuser—the person aggrieved either immediately or mediately as the Avenger of Blood——had complete control over the whole proceedings, which were looked upon as a demand for redress on account of the particular injury suffered. And so little were the public supposed to be interested in it, that if the “ one visible magistrate” to whose keeping the interests of the community have been confided, had in a virtuous mood, been first in the race, and had indicted the accused, and he had been convicted and afterwards pardoned, or had been acquitted, he was still liable to be “ appealed” by the person aggrieved. The appellee, if convicted, was liable to the same punishment as if he had been found guilty on indictment, but with this difference, that though the King might pardon and remit the execution of the sentence on an indictment, he had no legal right to pardon a person found guilty on an appeal of felony, it being aproceeding instituted at the suit, and in the name, of a private individual : “ the general principle being clear that the King cannot pardon in cases when no interest is, either in point of fact or by implication of law, vested in him” (Chitty on the Prerogative).
This method of private prosecution, whose spirit still pervades our criminal procedure, and which existed eo nomine down to 1819, when the defendant in Ashford v. Thornton threw down his gage on the fioor of the King’s Bench and claimed the ancient, but then nearly obsolete, privilege of defending an appeal of murder with his body,—-being viewed as a private litigation between the parties concerned, was conducted in all respects as a civil suit. The parties fought the legal duel on equal terms, and as a complainant had always enjoyed the right of employing counsel to conduct his case, a similar privilege was conceded to the appellee.
In 1730, when Thomas Bambridge was indicted at the