The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1874-09-12 00:00:00

PUBLIC PROSECUTORS.

Referring to the Report of the Judicature Comadosioe,
The Times has the following leader

There has long been a demand for Public Prosecu-
tors in this kingdom. The institution of similar
officers abroad and in Scotland is known to work ex-
ceedingly well, and the only marvel is that we should
have had to wait so long before some definite response
to public expectation came from official sources. It is
not only understood as a piece of theory, but felt le
positive and universal sentiment, that crime as such is
a wrong of which the State, and not merely the
individual who happens to suffer by it, should de-
mand the expiation. Crime, in each of its kinds, is
a declaration of war against society, and society re-
quires that the justice which ought to visit it shall
not be endangered in consequence of the unwilling-
ness, the want of means, the negligence, or the incom-
petence of the person who in the first instance feels
its malignant effects. There is, indeed, a section of
criminal cases in which the Attorney-General has
always been the prosecutor ,• but this practice is or-
dinarily limited to offences which concern the Govern-
ment, and in which the Government assumes for
the time the character of an injured private per-
son. Outside this class, the cases in which the
high Law Officers of the Crown officially sansime the
task of bringing the criminal to justice are few
and exceptional, and it is necessary for the due
discharge of their more important duties that
they should not be further burdened in this re-
spect. It appears to be even desirable that they should
be relieved of the personal responsibility ot cases, at
present within their duties, which do not necessarily
demand the peculiar qualifications for which they have
been themselves elected. An eminent Chancery or
Parliamentary practitioner officially conducting a
criminal prosecution is an anomaly which, in the pre
sent state of things, we should be glad to see retuov es!-
and other considerations which rest on the same ground
prevent the possibility of uniting the proposed new
duty of Chief Public Prosecutor with that of Attorney-
General. The general opinion has been that the
Chief Public Prosecutor should be a distinct official,
subordinate in rank to, and more or less subject to
the control of, the high Law Officers of the Crown ;
specially qualified for his functions by that practical
experience in criminal law which is less and lees re-
garded as a proper qualification for the highest poets,
and undiverted from his official duties by any complica-
tion of those duties with civil business. Nobody at the
present moment is paid for seeing that every means is
taken for the detection of crime, nor for the duty of
taking steps for bringing it to justice when de-
, tected ; and the consequences are what might be ex-
pected. It is certain that crime is committed
which never cornea to discovery; and it is certain that
known criminals not coming under the denomination
of felons'are not always brought to justice. Moreover,
the police, who in the present state of things are gene-
rally left to take the matter into their own hands,
besides being often dilatory, are quite as often
officiously and indiscreetly zealous. The conduct of a
criminal matter requires from its very commencement
the application of an intelligence superior to that of the
ordinary policeman, and in its intermediate stages
something superior to that of an average attorney's
clerk; and it is such an addition to our official forces
that the recently issued Fifth and Final Report of the
Judicature Commission recommends.
On the face of the Report, however, two facts
appear which may dismay those who wish to see such
a recommendation adopted. The Commissioners in-
form us that there "exists a doubt as to whether the
subject is strictly within the terms or powers of their
Commmission." It is, in fact, probable that it was not
within the terms of their Commission. But that such
should be the case may possibly have been an oversight.
At any rate, the Commissioners have deemed it to be
their duty to include the consideration of the subject
among their multifarious tasks, and the public will
thank them for it. Within the terms of their Commis-
sion or not, their project isou record as the expression
on the part of many high Judicial authorities of
the demand for what has long been popularly thought
a public necessity ; and as such it will be entitled to
the same consideration on the part of the Government.
More serious, however, than the doubt as to their
strict competency to advise on the subject is the fact
that the Commissioners are by no means agreed among
themselves as to the proper manner of constituting
the office. The consideration of expense, we are justi-
fied in saying from what appears on the face of the
Report, has operated in giving preference in detail to
the plan proposed by the Committee of the Commis-
sioners appointed for the purpose over one advocated
in the appended Memorandum of the Lord Chief
Justice of England. We learn, moreover, incidentally
that the Committee were favoured with a " confidential
statement" of some scheme to the same effect "at
present (June, 1873) under the consideration of the
Government ;" and we are informed that this confi-
dential communication influenced the Committee in
the form their conclusions ultimately took. How far
it would have been desirable to lay that scheme before
the public concurrently with the present Report,
and to state in what manner the provisions for taxing
and regulating the costs of prosecutions would affect
the result of the Committee's labours, it is not for us
to suggest. The Committee reported under one
Government, and the Commissioners now report
under another—a fact which will probably have its
weight with most people who read the Report by
the side of the Memorandum of Sir Alexander
Cockburn. The Committee in 1873 were evidently
influenced by their consideration of the " extra expense
of any scheme proposed as an important element in
considering whether the good to be expected from the
change is worth what it will coot" We at once suspect
the tone of this remark. It savours of the instinct for
cheap display, which is one of the pests of the day.
With this view they recommend that the Public
Prosecutor in country districts should be the Clerk
to the Justices. They believe that a "moderate
salary" would be sufficient to induce the Clerks of
Justices to undertake this additional duty, and that
in cases of special magnitude this moderate salary
might be supplemented by additional remuneration.
Such an arrangement surely militates against the
principle of paying by salary instead of by fees in
order to avoid the imputation of unworthy motives in
bringing castes into Court. We can imagine, for in-
stance, a case of special magnitude arising from the
suspicion of murder by poison, which might turn out a
case for exceptionally large special remuneration, and
be obviously liable in the highest degree to this odious
imputation. The embarrassment of the Commis-
sioners M only a phase of the difficulty which results
from all attempts at false economy—the fruitless en-
deavour to get good work done at a bad price. Sir
Alexander Cockburn has faced the difficulty boldly,
and he tells us that if we want a great improvement
effected we must be prepared to pay for it.
The Lord Chief Justice agrees with his colleagues
in the necessity for a Chief Public Prcieecutor, and for
professional prosecutors, debarred from other legal
work, in town districts; but he wholly disagrees from
the proposal to invest the Country Juetices' Clerks
with the new office. He sees no reaeon why men
of inferior capabilities should be appointed for the
country districts, where criminal offences are, in his
opinion, of a no less grave character, or less diffi-
cult of detection and proof. "To provide that
the Magistrates' Clerks obeli in these districts be
the Public Prosecutors would be to leave things
just as they are at present." In other words,
the Magistrates' Clerk would pocket his additional
twenty pounds a year without giving himself or his
staff any additional trouble. It is, in our opinion, an
unanswerable argument that almost all the prosecutions
in country districts are now conducted by Magistrates'
Clerks, and that the present outcry for Public Prosecu-
tors conclusively proves that the system does not work
satisfactorily. The position of Justices' Clerk is no
doubt a guarantee of character, but it is none whatever
of the special capacity required in a Public Prose-
cutor. Besides, the tendency in the case of the
attorney is to withdraw him wholly, as he rises in
the professional scale, from such experience as is most
necessary for the present office. We think with the
Lord Chief Justice that the recommendations of
the Committee on this point would, if adopted, have
the effect of marring the efficiency of the whole in-
stitution. What we want is superior judgment,
capacity, and, to a certain extent, experience on a
particular subject, and if we can secure We the nation
will be ready to pay for it. We want no additional
cheap and ineffective officialism. We agree with the
Lord hief Justice in thinking that all persona holding
the office of Deputy Public Prosecutor should be
lawyers of a given standing, paid by ealaries, not by
fees, and required to give up all other practice. It
must be considered that they are destined to a most
mportant function, and that no economy can be more
ill-judged than that which would employ means in-
adequate for its performance.

In connection with thin subject, the (Awing luta bees
sent to The Times for publication :
Sir,—Allow me to state that a system of conducting
public prosecutions nearly similar to that recom-
mended by the Lord Chief Justice has been in BUCCIIMe-
fiII operation in South Australia for more than 20
yearn. In South Australia grand juries have been
abolished, and their functions are discharged by the
Attorney-General, on whose information alone Can a
criminal be tried, and who, if in his opinion there isms
cane, certifies to the Court, and the prisoner is dis-
charged.
Alloy me also to suggest that many of the incon-
veniences pointed out in your columns in respect to the
heavy costs and delays of the superior courts may be
remedied by largely increasing the jurisdiction of the
county courts. In South Australia the local courts
(the substitute for county courts) have jurisdiction in
common law cases to 1:160 ; and the system has worked
so satisfactorily that it is n. .w proposed to increase the
jurisdiction to k5OO. By the adoption of mine such
system, the Judges of the "High Court of Justiai "
would be relieved of a large amount of work of a corn.
paratively trifling nature, and suitors would gain the
advantage of having their cases heard by a local tribunal
more quickly and far more cheaply than at present.—
I am, Sir, your obedient servant,
H. B. F. SIII.I,IIIIIWAYS.
51, Italia% St. Lsoosill'froria. 500.