Encyclopaedia Britannica, 11th Edition, "Coucy-le-Château" to "Crocodile" / Volume 7, Slice 6

by Various

2. The forms of criminal pleading still in use are in substance framed on the lines of the old system of pleading at common law in civil cases, which was swept away by the judicature acts. Criminal pleadings have, however, one peculiarity. Indictments, being in form the presentment of a grand jury, could not be amended until provision for that purpose was made in 1851. (See [Indictment].)

3. Criminal prosecutions are ordinarily undertaken by the individuals who have suffered by a crime. There is not in England, as in Scotland and all European countries, a public department concerned to deal with all prosecutions for crime. The result is that the prosecution of most ordinary crime is left to individual enterprise or the action of the local police force or the justices’ clerk.

The attorney-general has always represented the crown in criminal matters, and in state prosecutions appears in person on behalf of the crown, and when he so appears has certain privileges as respects the reply to the prisoner’s defence and the mode of trial. In the Prosecution of Offences Acts of 1879, 1884 and 1908 there is to be found the nucleus of a system of public prosecution such as obtains in other countries in case of crime. Under these acts the director of public prosecutions (up to 1908 an office conjoint with that of solicitor to the Treasury) acts under the attorney-general, but unless specially directed he only undertakes a limited number of prosecutions, e.g. for murder, coining and serious crimes affecting the government.

4. Where an indictable offence is supposed to have been committed the accused is arrested, with or without the warrant of a justice, according to the nature of the offence, or is summoned by a justice before him. On his appearance a preliminary inquiry is held for the purpose of ascertaining whether there is a prima facie case against him. The procedure is regulated by the Indictable Offences Act 1848, and is entirely different from the procedure for summary offences. It may be, though usually it is not, held in private; it is an inquiry and not a trial; the justices have to consider not whether the man is guilty, but whether there is such a prima facie case against him that he ought to be tried. If they think that there is, they commit him to prison to wait his trial, or require him to give security, with or without sureties, to the amount named by them, for appearing to take his trial. If they think the charge unsubstantial they discharge the accused at once. The prosecutor in cases of felony may if he likes go before the grand jury whether the case has or has not been the subject of a preliminary inquiry, but in the case of many misdemeanours it is obligatory first to have a preliminary inquiry, as a protection against vexatious indictments.

Whether there has or has not been a preliminary inquiry before a magistrate, no person can be tried for any of the graver crimes, treason or felony, except upon indictment found by a grand jury of the county or place where The grand jury. the offence is said to have been committed or is by statute made cognizable. In olden days, and even now in theory, the grand jury inquire of their own knowledge, by the oath of good and lawful men of the neighbourhood, into the crime of the county, but in practice the charges against the accused persons are always first submitted to the proper officer of the court. The grand jurors are instructed as to their inquisition by a charge from the judge, as regards the indictments concerning which they are called upon to enquire whether there is a prima facie case to send them for trial to the petty jury. The grand jury must consist of not less than twelve, nor more than twenty-three, good and lawful men of the county. But any person who prefers an indictment is entitled to have it presented to the grand jury. Officers of the court lay the indictments before the grand jury. The charges are then called bills, and if the grand jury considers that there is no prima facie case the foreman endorses the bill with the words “no true bill,” and it is then presented to the judge. The jury are then said to have ignored the bill, and if the person charged is in custody he is released, but is liable to be indicted again on better evidence.

As a means of constitutional protection in times of monarchical aggression this practice had no doubt a great value, but in the present day, when few offenders are tried without a preliminary inquiry by justices, the functions of a grand jury are of secondary importance, and the jurors’ time is perhaps needlessly occupied. The institution of the grand jury prevented the crown in the days of its great power from removing a person whom it wished to get rid of from among his neighbours, and placing him on trial in a strange place where the influence of the crown was greater. This is still true to a certain extent, as great injustice may be caused to a man by removing him from his neighbours and trying him at a distance from his friends, and from the witnesses whom he might call for his defence. In Ireland, for instance, the greatest injustice might be done by removing an Orangeman from Belfast and trying him in a Roman Catholic county or vice versa. But it has its evils where the area from which the jurors are drawn is small, such as a town of a few thousand inhabitants. In that case a man charged, say, with fraud, may be protected by his friends from being properly punished for that fraud. But where justice requires, an order may be made for the trial of the offence in another county or at the central criminal court.

In many colonies the Scottish system has been adopted, by which the ordinary form of accusation is by indictment framed by the public prosecutor, and a grand jury is only impannelled in cases where an individual claims to prosecute an offence as to which the public officials decline to proceed. In England criminal informations by the attorney-general, or by leave of the court without the intervention of a grand jury, are permitted in cases of misdemeanour, but are now rarely preferred.

If a coroner’s jury, on inquiring into any sudden death, finds that murder or manslaughter has been committed, that finding has the same effect as an indictment by a grand jury, and the man charged may be tried by the petty jury Coroner’s courts. accordingly. The law and procedure of the coroner’s courts are now regulated by the Coroners Act 1887. When there is a dead body of a person lying within the area of his jurisdiction, and there is reasonable cause to suspect that such person died a violent or unnatural death, or a sudden death of which the cause is unknown, or has died in prison, the coroner is entitled to hold an inquest, and if the verdict or inquisition finds murder or manslaughter, it is followed by trial in the same way as if the person accused had been indicted.

When an indictment is found by the grand jury (twelve at least must concur) the person charged is brought before the court, the indictment is read to him, he is asked whether he is guilty or not guilty. If he pleads guilty Trial by jury. he is then sentenced by the court; if he pleads not guilty, a petty jury of twelve is formed from the panel or list of jurors who have been summoned by the sheriff to attend the court. He is tried by these jurors in open court. The common law method of trial of crimes by a jury of twelve, native to English law, has been in modern times transplanted to European countries. It was not the original form of trial, for it was preceded by wager of battle (which was not finally abolished till 1819); and by ordeal, which was suppressed as to criminal trials in 1219 in consequence of the decree of the Lateran Council (1216). The first was allowed only on an appeal by an individual accuser; the second was resorted to on an accusation by public fame, which the accused was allowed to meet by submitting to the ordeal. It was after 1219 that trial by the jury of twelve (known as trial in pais) began to develop. At the outset the accused used to be asked how he would be tried, and could not be directly compelled to plead to the charge or to accept trial by a jury; which led to the indirect pressure known as the peine forte et dure, which fell into disuse after the Revolution and was formally abolished in 1772. But it was not until 1827 that refusal to plead was treated as a plea of not guilty, entailing a trial by a jury, and some old-fashioned officials still ask the old question “How will you be tried?” to which the old answer was “By God and my country.”

The original trial jury or inquest certainly acted on its own knowledge or inquiries without necessarily having evidence laid before it in court. The impartiality of the jurors was to some extent secured by the power of challenge. The exact time when the jury came into its present position is difficult accurately to define. On the trial before the petty jury the procedure and the rules of evidence differ in very few points from an ordinary civil case. The proceedings as already stated are accusatory. The prosecutor must begin to prove his case. Confessions (which are the object sought by French procedure) are regarded with some suspicion, and admissions alleged to have been made by the accused are not admitted unless it is clear that they were not extracted by inducements of a temporal nature held out by persons in authority over him. During the spring assizes of 1877 a prisoner was charged with having committed a murder twenty years before, and the counsel for the prosecution, with the consent of the judge, withdrew from the case because the only evidence, besides the prisoner’s own confession, was that of persons who either had never known him personally or could not identify him. The accused may not be interrogated by the judge or the prosecuting counsel unless he consents to be sworn as a witness. In this respect the contrast between a criminal trial in England and a criminal trial in France is very striking. The interrogation and browbeating of the prisoner by the judge, consistent as it may be with the inquisitorial theory of their procedure, is strange to English lawyers, accustomed to see in every criminal trial a fair fight between the prisoner and the prosecution, and not a contest between the judge and the prisoner. The accused may, if he choose, be defended by counsel, and if poor may get legal aid at the public expense if the court certify for it. He is entitled to cross-examine the witnesses for the prosecution and to call witnesses in his defence. At the conclusion of the evidence and speeches the judge sums up to the jury both as to the facts and the law, and the jury by their verdict acquit or convict. Immediate discharge follows on acquittal; sentence by the judge on conviction.