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Judges, as of old, were not slow to mould its influences for the public good, and to treat persons as if they were almost as important as things.
In Reg.v. Butcher and others (2 Moody & Rob., 229), on the Western Circuit, before Coleridge, J., in 1839, Cockburn (afterwards L.C.J. of England) for the defence (malicious shooting), in his address to the Jury, was proceeding to give an account received from the prisoners, for which, he said, he would be compelled to rely on statements only, as any one who could have explained the transaction was included in the indictment: Coleridge, J., interposed, and said :—“I cannot allow counsel to make any statement of facts not intended to be proved, without giving a reply to the counsel for the prosecution. The same rule ought to prevail when counsel are defending prisoners, as in civil cases. When, indeed, a prisoner is undefended, the Court are obliged to hear his whole statement, and the Jury must make the best of it, but I have often insisted on the rule where counsel were employed, and it ought to be followed.”
Still, though the keynote was struck thus early, naught but the sacred rights of property engaged the thoughts of the law reformers for many a day, till the success of the reforms in Nisi Prius practice, in 1854, seems to have suggested to humane minds that men might have rights as well as things. And so in 1860, Mr. Denman introduced a bill into the House of Commons, having for its object the assimilation of the proceedings on trials for felony and misdemeanour to those on trials at Nisi Prius, so far as related to the regulation of addresses to the Jury. Sir George Lewis (Home Secretary), in supporting the bill, gave it as his experience, in his office, that the fear of not getting the last word often deprived prisoners of the benefit of defences that might fairly have been submitted to the Jury. And in moving the second reading of the bill in the Lords, Lord Brougham averred that: “ Under the existing
practice it had been found in too many cases that counsel for the defence, being afraid of the speech in reply on the other side, abstained from calling witnesses, thereby defeating the very aim and end of justice, namely, the discovery of truth.
The great recommendation of the bill was, that it placed the procedure in cases of felony and misdemeanour on the same footing as in civil cases. He did not support it on the ground of its being more favourable to prisoners and defendants, but because it was calculated to elicit the truth."
That bill was dropped then, because of the insertion of a clause making it discretionary with the Judge, in each case, to allow or disallow the right to sum up; but its chief provisions ultimately became law in 1865.
This Act (28 Vict., c. 18), recites the expediency of more nearly assimilating the law of evidence and practice on trials for felony and misdemeanour and other proceedings in Courts of Criminal Judicature to that on trials of Nisi Prius, and by sect. 2, provides as follows :
“If any prisoner or prisoners, defendant or defendants, shall be defended by counsel, but not otherwise, it shall be the duty of the presiding Judge, at the close of the case for the prosecution, to ask the counsel for each prisoner or defendant so defended by counsel whether he or they intend to adduce evidence, and in the event of none of them thereupon announcing his intention to adduce evidence, the counsel for the prosecution shall be allowed to address the Jury a second time in support of his case, for the purpose of summing up the evidence against such prisoner or prisoners, or defendant or defendants; and upon every trial for felony or misdemeanour, whether the prisoners or defendants, or any of them, shall be defended by counsel or not, each and every such prisoner or defendant, or his or their counsel respectively, shall be allowed, if he or they shall think fit, to open his or their case or cases respectively;
and after the conclusion of such opening or of all such openings, if more than one, such prisoner or prisoners, or defendant or defendants, or their counsel, shall be entitled to examine such witnesses as he or they may think fit, and when all the evidence is concluded, to sum up the evidence respectively; and the right of reply, and practice, and course of proceedings, save as hereby altered, shall be as at present.”
Sect. I declares “That the provisions of sect. 2 of this Act (that just quoted) shall apply to every trial for felony or misdemeanour which shall be commenced on or after the first day of July, 1865."
Bearing in mind that the object of the Act was to assimilate the practice on criminal trials to that at Nisi Prius ; that sect. 2 is made applicable to every trial for felony or misdemeanour without exception; and that the right of reply only remains “save as hereby altered,” the words of section 2 would seem to leave very little of “privilege,” or “prerogative,” or right of reply, to the Attorney-General or those who declare to the Court that they appear as his representatives in public prosecutions. The only possible occasion left to them by the Act for its exercise seems to be that hardest of all cases, when the prisoner is not defended by counsel—that being the only
present practice” not hereby altered.” prerogative or privilege is not dead-it does not even sleep -but still flourishes and continues to assert itself even more loudly and boldly than before, and, with that greatest of all recommendations success.
At the last Summer Assizes held at Manchester, on the Trial of the Directors of the Northern Counties' of England Fire Insurance Co., the prosecuting counsel claimed the right to reply on the whole case, though no evidence had been adduced on the part of the defendants, on the ground that, having been instructed by the Director of Public
Prosecutions, he was representing the Attorney-General ; and Lord Justice Bramwell, after consulting his colleague, allowed the claim-though the privilege was stoutly resisted by eminent counsel on the part of all the defendants, and, among others, by an ex-Attorney-General (Sir J. Holker) who wished to restrict it to cases in which the AttorneyGeneral was personally engaged. In deciding that the Attorney-General's right of reply remained notwithstanding the Statute, the Judges seem to have been swayed by the consideration that the Legislative cannot abridge the Executive power of any rights which it now has by law, without its own consent-it being a branch of the Legislature; and that therefore it is one of the prerogatives of the Crown that the Queen is not bound by any Act of Parliament, unless she be named therein by special and particular words. “ The most general words that can be devised (says Blackstone) (any person or persons, bodies politic, or corporate, &c.) affect not him (her) in the least, if they may tend to restrain or diminish any of his (her) rights or interests."
“ Yet, where an Act of Parliament is expressly made for the preservation of public rights and the suppression of public wrongs, and does not interfere with the established rights of the Crown, it is said to be binding as well upon the King as upon the subject,” i.e., by implication and construction (II Rep. 71, 74).
We venture to suggest that, in the case of the Northern Counties' Directors, it was not sufficiently prominently placed before Lord Justice Bramwell that no prerogative of the Crown was in question. The Crown is, in a sense, concerned in all prosecutions, but even in many of those that, both in name and in fact, may concern the Crown-as in Mint prosecutions and Post Office prosecutions—it is not usual to exercise, or to claim to exercise, any such privilege. This privilege of the Attorney-General is, in fact, his official privilege, as prosecutor in the name of the Sovereign, and
the language of those who claim it, as his deputies, is always, “I represent the Attorney-General," not “I represent the Crown ; ” and this seems clearly to have been the view taken of it by Martin, B., in Reg. v. Christie (1 F. & F., 75). The Act 28 Vict., c. 18, passed with the assent of the Crown, whose prerogatives are not, in our view, at all involved in its subject matter, is, in its language, quite wide enough to comprehend the Attorney-General, as representative of the public, who personally can have no rights in the nature of a Royal prerogative, or such as to be beyond the reach of the general words of a Statute. We concede that when he appears in his official capacity he still has the right of reply; but the words “official capacity” must have a definite meaning attached to them, viz., as personal prosecutor in the Queen's suits, not as prosecutor for the public. The Royal prerogative has its metes and bounds—there is no spell in the words “official capacity” that can extend it to cases not within their meaning. The Attorney-General, as Public Prosecutor (as by a legal fiction he is presumed to be), has a general control over all prosecutions, and may by nolle prosequi intervene when the interests of the public require it; but he is then acting on behalf of the public, and his proceedings must be regulated by their rules. In this sense, every prosecuting counsel in the country represents the Attorney-General ; yet he would be a bold man who ventured to claim his “prerogative.” And to claim it on behalf of the Director of Public Prosecutions, who is directed by the Attorney-General, even in a “special case” ordered by that law officer, seems not only opposed to the spirit of the plain terms of modern legislation, but at variance with the ancient practice.
“ The right of the Attorney-Gentral to reply, whether witnesses are called by the prisoner or not, is an anomaly" (says Mr. Justice Stephen, in his “General View of the