indictable offence may be, but rarely if ever are, conducted
in private. On the continent of Europe, with rare exceptions,
all preliminary proceedings in a criminal charge are secret.
Outside English-speaking countries this secret investigation
continues more or less. But of the two systems, accusatory
or inquisitorial—the first meaning the right of the accused to
defend himself, the second meaning the right of the state to
examine any legal offence in private in order to ensure the safety
of society,—the accusatory is gaining ground in every country.
In English-speaking countries it is an established law that an
accused person should have the right of publicity of the proceedings
and the right to defend himself by counsel and by
witnesses. In Europe the inquisitorial system is gradually being
abandoned. Perhaps the best code of criminal procedure in
Europe is that promulgated in Austria in 1873. It followed a
fundamental law of the Empire which laid down inter alia that
all legal proceedings, civil or criminal, should be oral and public,
and that the accusatory system in criminal cases should be
adopted. Germany followed this example. Italy, Holland.
Switzerland and Spain have followed Austria and Germany as
regards the preliminary investigation; Italy and Belgium have
surrounded the accused with guarantees against arbitrary
confinement before trial; Holland has conferred upon the accused
the right of seeing the adverse testimony and of being confronted
with the witnesses, and, further, has formally insisted that no
insidious questions, such as questions assuming a fact as true
which is not known to be true, should be allowed. Other
countries still remain on the old lines. But everywhere, whether
reform has actually been accomplished or not, there is a demand
for even-handed justice, and a growing conviction that the
accused should have all his rights, now that society is no longer
in danger from undiscovered criminals and unpunished crime.
Even in France, the champion of the inquisitorial system, a
change is being made. Up to 1897 secrecy was imposed invariably
in the preliminary investigation of crime, and was held
necessary for the discovery and punishment of the offender.
The Loi de l’instruction contradictoire, December 8, 1897,
however, was a long step towards complete justice in the treatment
of the accused in the preliminary inquiry. The main
reform is that the accused, after he has once appeared before
the judge and a formal charge has been made against him, is
entitled to the assistance of counsel, either chosen by himself or
assigned to him if he is poor. If he is in prison he is allowed
to communicate freely with his counsel, who is entitled to see all
the proceedings, and in every appearance before the judge his
counsel accompanies him. There are, however, certain limitations.
The counsel cannot address the judge without leave,
which may be refused, nor can he insist on any proceeding he
thinks necessary in his client’s interest. He can only solicit.
He has no right to be present at the examination of witnesses,
who continue to be interrogated by the judge alone and not in
the presence of the accused; but he must receive twenty-four
hours’ notice of every appearance of the accused, and he is
entitled to be present whenever his client, after the first formal
appearance, comes before the judge. In England, as already
pointed out, although the prosecution is in the name of the crown,
and although a public prosecutor has been appointed, still as
a rule it is conducted by the person injured as the person injured,
or by the police.
3. In England the single-judge system is universal, save in appeal; on the continent of Europe plurality of judges is insisted upon, save in the most trivial cases, where the punishment is insignificant. In most countries of the continent of Europe the whole machinery for the prevention, investigation and punishment of crime, is conducted by what is called the parquet, which represents society as a collective unit and not the individual injured. The head of the whole parquet in France is the procureur-général, who holds equal rank with the members of the supreme court. Under him there are procureurs-généraux attached to each of the courts of appeal, of which in France there are twenty-six, and under each of these subordinate procureurs there are procureurs (prosecutors) of a lesser degree. The next stage to the parquet is the juge d’instruction, who corresponds to the English magistrate, and is the most formidable personage in the whole system of French criminal law. He can detain and accuse a person in prison, can send for him at any time and ask him such questions as he pleases.
After the first examination the prisoner is entitled, in most European countries, to the assistance of counsel, but the powers of counsel are so limited that the juge d’instruction has a complete discretionary power regarding the investigation of the case. The natural consequence of this procedure is that the preliminary investigation really decides the ultimate result, and the final trial becomes more or less a solemn form.
The criminal law of Ireland is to a great extent the same as that of England, resting on the same common law and on statutes which extend to both countries or are in almost the same terms, and is administered by courts of assizeIreland. and quarter sessions, and by justices, as in England. In a few instances statutes passed for England or Great Britain before the Union have not been extended to Ireland, or statutes passed by the Irish parliament before the Union or by the British parliament since the Union create offences not known to English law. In Ireland the system of prosecution is nominally the same as in England, but in practice almost all prosecutions are instituted and conducted under the direction of the attorney-general for Ireland, who is a member of the government of the day, and so responsible to parliament, as in the case of the lord advocate. In Ireland, owing to the police being a centralized force, under the management of commissioners residing in Dublin, any prosecution which in England might be conducted by the local police, would in Ireland be conducted under the direction of the chief of the police in Dublin, who is necessarily in close communication with and under the control of the attorney-general.
In Scotland hardly any crimes are constituted by statute law, the common law being to the effect that if a judge will direct any act to be a crime, and a jury will convict, that act is a crime. This great elasticity of the commonScotland. law to include every sort of new crime which might arise was in times past very dangerous to political liberty, as it greatly enlarged the power of the crown to oppress political opponents, but in modern days it has its convenience in facilitating the punishment of persons committing crimes for the punishment of which in England a new act of parliament may be necessary. Criminal procedure in Scotland is regulated by an act of 1887 which greatly simplified indictments and proceedings. The prosecution of crime is in the hands of public officers, procurators fiscal, under the control of the lord advocate. Private prosecutions are possible, but rare. Except in the case of the law of treason, imported from England at the Union, no grand jury is required, and the indictments are filed by the public officer.
The criminal law of England forms the basis of the criminal law of all British possessions abroad, with a few exceptions, e.g. the Channel Islands (still subject to the custom of Normandy) and the anomalous case of Cyprus, whereOther British possessions. Mahommedan law is to some extent in force. As to India, see infra.
In many British colonies the criminal law has been codified or at the least consolidated. Criminal codes have been passed in Canada, New Zealand (1893), Queensland (1899) and W. Australia (1901). Many crown colonies have codes framed on the model prepared by the late Sir R. S. Wright for Jamaica and revised in 1901, and in British Guiana opportunity was taken (in 1893) to abolish the remnants of Roman-Dutch criminal law.
The criminal law of South Africa, which is based on the Roman-Dutch law, including the Constitutio Criminalis Carolina (1532), is not codified. In the Transvaal and Orange River colonies codes of criminal procedure are in force, drawn mainly from the common and statute law of the Cape Colony with the addition of provisions borrowed from English and colonial legislation.
In Mauritius the criminal law is comprised in a penal code of 1838 and a procedure code of 1853, which, with the incorporated amendments, are to be found in the Revised Laws of Mauritius
