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bond which, had they both been wise, would never have been broken. Let the North remember that “it is," as Owen Felltham says, “much safer to reconcile an enemy than to conquer him. Victory deprives him of his power, but reconciliation of his will: and there is less danger in the will, which will not hurt, than in the power which cannot, for the power is not so apt to tempt the will as the will is studious to find out the means.

ART. V.-CRIMINAL PROCEDURE.—PUBLIC

PROSECUTORS.

1. The Eighth Report of the Commissioners on Criminal Law. 2. A Bill to provide for the Appointment of Public Prosecutors,

and for the Amendment of Criminal Procedure in

England and Wales. 3. The Report from the Select Committee on Public Prose

cutors. Ordered by the House to be printed, 9th August,

1855. 4. Judicial Statistics, 1861. England and Wales. Part 1.

Police. Criminal Proceedings. Prisons. IT T is obviously of the utmost importance to the well-being of

a state, that its system of administering criminal justice should be rendered as efficient and exact as possible. We therefore offer no apology for drawing attention from time to time in these pages to some of the grave defects which are still allowed to disfigure our criminal procedure, and which the exercise of a little simple but judicious legislation would at once remove. How that legislation should be applied, in one important instance, we shall indicate in this article.

The repression of crime, which forms the proper province of criminal jurisprudence, is effected by two agencies :- -First, the detection and defeat of attempts to commit offences; second, the discovery of those who have committed offences, and the application of a deterring punishment. The first is the detective and preventive; the second, the detective and deterring department. The first agency is exclusively that of our police system; the second is partly that of our police, and partly that of our executive. It is with the second that we are about to deal. And our concern will be chiefly with the stages which precede the trial at the sessions or assizes.

* We must not be understood as necessarily concurring in all the opinions expressed by our able contributor.-Ed. L. M.G R.

When a crime has been committed in this country, the fact is at once brought under the notice of the police authorities. An officer is instructed to take the case ; and he institutes an inquiry, which enables him to carry some suspected person before the justices in petty sessions. If upon examination the facts are strong enough to cast grave suspicion upon the accused, he is committed either to the sessions or the assizes. Here then, we have the first two stages of a criminal process: the first stage, between the offence and the apprehension of the supposed offender; the second, between the apprehension and committal. In the first stage, the offices of inquiry, of warning, of pursuit and apprehension, are very properly placed in the hands of the police; and in ordinary cases this duty is done with much energy, skill, and intelligence.

As soon, however, as the supposed offender is taken, the whole aspect of the case is changed. If the crime be one of such magnitude as to take it out of the summary jurisdiction of the justices, the conduct of the case always requires some care, and often requires some experience of law. Fortunately this care and experience are in some measure supplied by an officer who is a necessary part of every petty sessional court. This officer is the clerk to the magistrates. The clerk to the magistrates is almost always an attorney of standing and experience. It is his duty to attend the Court whenever it is sitting; to arrange the order of business ; to take down the depositions of the complainant and his witnesses, in each case; to read over these depositions to the deponents ; and, in a word, to conduct all the purely ministerial work of the Court.

Often the professional knowledge and experience of the magistrates' clerk render him a valuable adviser, both on points of law and practice. Indeed, as a general rule, the magistrates' clerk does, to some extent, conduct each case on behalf of the Crown-sifting the evidence as it is given; checking the police officers; pointing out to them defects in the case; suggesting the manner in which such defects should be supplied; and, in most instances, advising the Bench on the ultimate questions of dismissal, remand, or committal. It must, however, be remembered, that though this is, in fact, the position taken by the clerk to the magistrates, and though, indeed, it is a position which he must almost of necessity assume, these functions of quasi prosecutor are not within the scope of his proper office, and are not legally recognised. Nor, in those sessional divisions where the criminal business is large, is it possible that the clerk can, under the existing arrangement, exercise more than the most cursory supervision over the cases as they come pouring in. This is all that the present scope of his duties requires of him. On this basis his salary and staff are fixed. It would therefore be unreasonable to expect that he will give close attention to the more serious or intricate charges, which present difficulties in law or fact.

The next stage is the interval between the commitment and the presentment to the grand jury. After committal, the officer to whom the warrant was first handed, or who first apprehended the accused, still retains charge of the case. As a rule, it goes to the sessions or assizes, just in the same state in which it was presented to the examining magistrates. The practice is for the clerk to the magistrates to hand copies of the depositions (not unfrequently through the police officer) to an attorney, who takes the fees allowed by the Treasury for prosecutions. These fees are very small : so small that they would not repay a respectable attorney in moderate practice for giving any proper attention to the prosecutions, even if he got them in large numbers. It follows, that

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wherever these prosecutions are open—as is mostly the case—* they are sought after, and conducted by attorneys of a low class, who seldom do more than place a copy of the depositions in the hands of counsel. In the meantime, the original depositions are forwarded to the clerk of indictments for the Court to which it goes. He prepares the indictment.f The accuser and his witnesses are brought by the police-officer who superintends the case, to the sessions or assizes. There the indictment is handed to the prosecuting attorney, who has arrived with his brief, which, as we have before remarked, is merely a copy of the depositions. At sessions, the depositions are not often preceded by any statement of the case; but at assizes they always are. This statement, in most cases, is nothing more than another copy of the depositions put into the third, instead of the first person. Of course, the police officer, if he be intelligent and active, has mastered the details of the charge; and, between the commitment and trial, has looked after it. Sometimes an additional link of evidence is wanting ; he supplies it—sometimes there is ambiguity in the evidence already obtained; he clears it up. But every effort of his has been made under the bias of natural zeal for a conviction. The results of these inquiries are supplied to the prosecuting attorney, and put into the brief. When the prosecuting attorney meets the prosecuting policeman with the witnesses on the morning of the assizes, he hands him the indictment, and there generally, in the present state of things, his duty ends, so far as the prosecution goes.

The policeman then undertakes the conduct of the case through its next stage, which is the presentment of the charge to the grand jury. He collects and marshals the witnesses, takes them into the grand jury room, and the bill is presented

* At Liverpool and Manchester the prosecutions are managed by attorneys appointed by the Town Clerk, at a fixed salary. At Leeds, by a kind of compromise, the cases are handed to three attorneys, who act as joint prosecutors, and divide the fees.

Report on Public Prosecutors. Richardson, QQ. 872, 873; Hemp, 883—886; Goodman, 2,219–2,224.

In serious or difficult cases it is drawn by counsel.

*

to the foreman, who also has the depositions before him. The grand jury have no professional assistance. At sessions they are generally respectable merchants and tradesmen; at assizes, they are composed of the leading gentry in the county. It need scarcely be added, that the grand jurymen at sessions are ignorant of even the rudimentary principles of criminal jurisprudence. At assizes, its members are mostly men of education, and have often had some experience in the practical administration of the criminal law.

Before the grand jury an inquiry takes place, which, to some extent, resembles that made before the examining magistrates. It is, however, much less close, searching and accurate, being conducted privately, and without the assistance of a clerk,* who is always present at petty sessions. It follows, naturally, that the investigation is usually of the most imperfect kind.

With the grand jury, however, rests the absolute and uncontrolled discretion of deciding whether the charge should be sent before the Court. If they decide that it should, and bring in a true bill, we reach the last stage. The prisoner is arraigned or put upon his trial.

Now, the object of putting a man upon his trial is to ascertain whether or no he has committed a crime alleged against him. But, inasmuch as it is a matter of grave moment to the individual, that such suspicion should rest upon him as requires a trial; and as it is of still graver moment that such suspicion should not be allowed to remain upon his character without just cause, we find two principles resting at the very foundation of true criminal justice. First, that suspicion

a

* Mr. Markland, one of the attorneys employed at that time to conduct the prosecutions at Leeds, says, in his evidence before the Select Committee on Prosecutions, that he “ had been frequently called in before the grand jury to explain." -(Q. 802.) We believe, however, that this is most unusual, and we question whether the present constitution of the grand jury allows of such interference. In the Eighth Report of the Commissioners on Criminal Law, it is expressly stated that the prosecutor only “may attend the grand jury to assist in conducting the evidence on the part of the Crown.” (Art. îxix.) The only exception seems to be that of allowing counsels' attendance in charges of high treason.-12 Viner's Abrdgt. 38; Hawkins' Pleas of the Crown, 62, c. 46, s. 93. Corner's Practice, 723.

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