CHAPTER XIII.

OF THE CRIMINAL REMEDY BY INFORMATION,— CONTINUED.

SECT. 1.-Preliminary Requisites to the granting an

Information.

THESE informations are filed by the master of the crown office, under the provisions of the 4 & 5 W. & M. c. 18., before adverted to, and require an express direction from the court of Queen's Bench.

In the King v. Jolliffe (a), Lord Kenyon, C. J., said, "Before the statute 4 & 5 W. & M. c. 18. it was in "the power of any individual to file an information "without disclosing to the court the grounds upon "which it was exhibited; but that practice being "attended with the inconveniences recited in the pre"amble to that statute, it was enacted, that no such "information should be filed without the express order "of the court, publicly given. That statute does not "enumerate the grounds which are sufficient to enable

(a) 4 T. R. 290.

"us to grant the information, but the legislature left "it to our discretion, trusting that we should not so "far transgress our duty as to go beyond the rules of "sound discretion."

In the King against Robinson (6), Lord Mansfield, C.J., enumerated the grounds by which the court had limited itself in the exercise of this discretion." 1st, "As to the merits of the person applying; for they 66 may be under such circumstances as that the court "will not interpose to favour them. 2d. The time of "application. As to this there is no precise number of "weeks, months, or years; but if delayed the delay "must be reasonably accounted for. 3d. The sus"picious state of the case, ex evidentiâ rei. 4th. The 66 consequences of granting the rule; on which account "the court laid down the rule, that they would not "grant one for bribery at parliamentary elections till "after the two years were expired within which civil "actions may be brought."

We will briefly treat of these rules in the order in which they were mentioned by Lord Mansfield.

First,―As to the merits of the party applying. The party applying must be the party injured, unless it be sworn that he is abroad, and that the information is sought by some near relative, or general agent, in his behalf. (c) The court will not grant a criminal information at the instance of a private prosecutor for a public libel against the queen or her government. (d)

The party applying must have relied entirely on the protection of the court. If he has in any way resented or retaliated the libel, the court will refuse to put in

(b) 1 W. Bl. 541.

(c) Rex v. Bate, Doug. 387. (d) 4 Bl. Com. c. 23. s. 3. But see Rex v. Norris and others,

2 Lord Ken. 300; and Rex v. Steward and others, 2 B. & Adol. 12.

motion this extraordinary remedy in his behalf. In the Queen v. the Proprietors of the Nottingham Journal (e) it was said, "Persons who ask for the inter"ference of this court in their favour, by the exercise "of its summary jurisdiction, must leave themselves wholly in the hands of the court. If in any way they make attacks on the parties against whom they "ask for our summary interference, they disentitle "themselves to succeed in their application. There is << no restrictive qualification on this rule, which has "been again and again laid down in this court."

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This rule seems to have been carried to its full extent in the recent case of the Queen v. Lawson. (ƒ) In that case the foreman of a jury whose motives in returning a verdict had been impugned in the Times newspaper, wrote a recriminating statement, and signed it for self and fellows. The court held that none of them were entitled to a criminal information, although there were affidavits from each of the jurymen that "the said letter was not written with this deponent's

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knowledge or by his authority, nor did the foreman "communicate with this deponent concerning the "writing or sending the said letter, or any letter, or "obtain from this deponent any sanction, request, "concurrence, or authority to or for writing or send"ing the same, or any letter; and this deponent did "not see the said letter, and was not aware that it "had been written or sent, or that it or any such letter

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was intended to be written or sent, till long after the day on which it bears date." The court, however, in this case, gathered from the affidavits, that the jurymen knew of the letter being written, and "they "ought to have told the foreman, that if he published

(e) 9 Dowl. 1042.

(f) 1 Q. B. R. 490.

"the letter they would not join in any application for 66 a criminal information."

It is one of the conditions of granting a criminal information, that the prosecutor should have recourse to no other remedy. If an indictment have been preferred, although it be quashed for informality (g), if an action be pending (h), if a warrant have been taken out (¿), the remedy by criminal information is gone; and no offer on the prosecutor's part to discontinue the other proceedings will then avail him.

It has already been stated, that if an action be brought after a criminal information has been granted, it is of course to stay the proceedings in the action. (k) But if the defendant do not apply to stay proceedings in the action, the court will pass no sentence upon a conviction on the information, even although the prosecutor

then offer to discontinue the action. (1)

In addition to being the party injured, and to having elected this single remedy for the injury, the prosecutor must come into court with clean hands." It is a general rule, not to grant a criminal information without an affidavit by the prosecutor, directly and pointedly averring his innocence of the charge; and it is usual to negative it in the words of the charge, with general words, such as "or elsewhere," or "at any other time," to show the court that the affidavit is a substantial and not only a colorable denial of the charge made. (m)

Where a criminal information was applied for against

(g) 8 Mod. 187.

(h) Rex v. Fielding, 2 Burr.

719.

(i) 4 A. & E. 576. n. (k) Per Ashurst, J., Rex v. Sparrow, 2 T. R. 198.

(1) Rex v. O'Gorman Mahon, 4 A. & E. 575.

(m) Rex v. Miles, 1 Doug. 283; Rex v. Wright, 2 Chitty, R. 162; Rex v. Taylor, 1 Jurist. 53; Rex v. Bickerton, 1 Str.

the proprietor of a newspaper, for articles in which, among other libellous matter, there was contained an insinuation that certain scurrilous articles in a rival newspaper emanated from the applicant, the court discharged the rule, because the affidavit upon which the rule nisi had been granted did not distinctly negative any knowledge or connexion of the applicant with the scurrilous articles. (n)

This general rule, requiring an exculpatory affidavit, is not, however, without exceptions. Where the person injured is abroad, the party making application in his behalf is only expected to go as far in his behalf as the nature of the case admits of, by swearing to letters or other intelligence within his reach. (0)

Where the libel consists of a charge of having used language of a disgraceful or criminal nature in parliament, no affidavit in denial is requisite. The Bill of Rights expressly provides that what passes there shall not be questioned, and the court will presume that nothing of the kind did take place. (p)

Where the charge is a general imputation no affidavit in denial is necessary; as if the libel should consist in calling the prosecutor a thief, or a traitor, or in stating that he was held in general abhorrence. (q)

Where the libel reflects upon a public body of men, as upon the clergy of the diocese of Durham, or the justices for the county of Middlesex, the court will require no affidavit in denial. (r)

53.

But where a charge of bigamy was made, and it

(n) Rex v. Taylor, 1 Jurist. 387, in the note; Rex v. Dennison, Lofft. 148.

(0) Rex v. Bate, Doug. 387. (p) Rex v. Bate, Doug. 387; Rex v. Haswell, ibid.

(q) Rex v. Haswell and Bate,

(r) R. v. Williams, 5 B. & A. 595; R. v. Jenour, R. v. Alderton, R. v. Holloway and Allen, cited by Mr. Starkie, 2 Starkie on L. & S. 289.