The new public prosecutor | 27 September 1879

The new public prosecutor

The object of the 'Act for more effectually providing for the Prosecution of Offences in England, and for other purposes' (cap. 22 of last session), which will come into operation on the 1st of January next, is to constitute a public prosecutor. It empowers 'a Secretary of State' (it is nowhere said which secretary) to appoint an officer, originally proposed to be called the Solicitor for Public Prosecutions, but subsequently designated the Director of Public Prosecutions. This officer is to be a barrister or solicitor of not less than ten years' standing. His functions will be to institute or carry on criminal proceedings, and to give advice and assistance to the police authorities, magistrates' clerks, and other persons concerned in any criminal proceeding respecting the conduct of that proceeding, subject to regulations to be made by the Attorney-General, with the approval of the Lord Chancellor and a Secretary of State, and also subject to the direction of the Attorney-General in any special case. The class of cases in which the director is to take action is indicated in section 2 as being cases of importance or difficulty '“ for instance, as the Lord Chancellor has said, in great commercial frauds, where the expense of prosecution is great '“ or in which there are special circumstances, or a person has refused or failed to proceed with a prosecution. The director may be provided with assistants, not exceeding six, who are to be barristers or solicitors of at least seven years' standing, and are also to be appointed by a Secretary of State; and with clerks, messengers, and servants, to be appointed by the Attorney-General, with the approval of a Secretary of State. It would appear from section 2 that each of the assistants is to be appointed to act in a particular district. Both the director and his assistants are debarred from private practice.

The natural inference from these provisions would be that the Director of Public Prosecutions was a magnified Solicitor to the Treasury. But it was explained, while the measure was passing through Parliament, that no interference was intended with the duties of the Solicitor to the Treasury. The new official would have the supervision of all prosecutions; he would have the right to institute prosecutions and to intervene wherever he thought it necessary; but he would not act as a solicitor in getting up cases. The subsequent provisions of the Act are intended to arm him with the powers requisite for exercising his duty of supervision. Section 5 provides that, upon notice by the director that he has instituted or undertaken any criminal proceeding, all recognizances, depositions, &c., connected with such proceedings are to be transmitted to him, and he is to deliver them to the officer of the court in which the trial is to be had, and to give copies to the accused on application.

The next provision of this section is, however, the most important. Wherever any prosecution before magistrates is withdrawn or not proceeded with within a reasonable time, 'it shall be the duty of every clerk to a justice or to a police-court' to transmit copies of the information and of all depositions and other documents relating to the case to the director; and a magistrate's clerk failing to comply with this provision is subjected to the same penalty to which a justice or coroner is liable for failing to comply with the requirement to deliver to the proper officer of the court the recognizances, depositions, &c. The object of this provision is, of course, to insure that no prosecution, once instituted, shall be abandoned without the consent of the director. But there seems to be a good deal of indefiniteness about the expressions used. The prosecution, we presume, is 'instituted' before the magistrate when the information has been laid before him. Is the prosecution to be considered as 'withdrawn' when no one appears to prosecute at the hearing; so as to render it the duty of the clerk to send up the written information (if any) at once? What is a 'reasonable time' within which to proceed with the prosecution? Where a summons is issued on a verbal information, and no one appears to prosecute, is a copy of the summons to be transmitted? These matters may, perhaps, be provided for by the 'regulations' for carrying the Act into effect.

Provision is made by section 7 for exempting the director and any other person from being bound over to prosecute in cases where criminal proceedings are undertaken by the director, and for enabling persons interested in such prosecutions to obtain restitution of their property provided they give 'all reasonable information and assistance to the director in relation to the prosecution.'

Nothing in the Act is to 'interfere with the right of any person to institute, undertake, or carry on any criminal proceeding' (section 7); and any person having the right to institute and carry on such proceedings, 'may, if he have good cause for so doing, show by affidavit' to a judge of the High Court that the director has 'abandoned such proceedings or neglected duly to carry on the same'; and the judge, after hearing the director, may give directions as to the mode in which such proceedings shall be continued by the person applying or the director.