himself, actually denominates him a criminal and describes him as a monster? This case can hardly be regarded as a decisive authority against the lawfulness of publishing a bare and impartial report of preliminary examinations before magistrates.

The next case on the subject of ex parte examinations (a) was also one in which comments on the conduct of the parties were added to the report. A riot having taken place at Brighton, the high constable called for the assistance of the military, who charged the mob, and one person was killed. An inquest was held before the coroner, which lasted some days and ended in a verdict of wilful murder against the high constable, one of his assistants, and the soldier who caused the death of the deceased. The defendant, before the jury had finished their labours, published in his newspaper a statement of the evidence, accompanied with remarks tending to cast blame on the high constable and the other peace officers for imprudently and unnecessarily calling out the military for the purpose of suppressing the tumult which had arisen. The court made absolute a rule

for a criminal information.

In Duncan v. Thwaites (b) the plaintiff had been charged before a magistrate with indecently assaulting a female child, and the report contained a statement that the evidence of the child herself and her cousin "displayed such a complication of disgusting indecencies that we cannot detail it." The Court of King's Bench held (on demurrer to a plea) that the report could not be justified on the ground of being a correct report of the proceedings which took place in the course of a preliminary inquiry before a magistrate; and there is no doubt that the judgment of the court, which was delivered by Abbott, C.J., proceeds on the general ground that any publication of such proceedings is unlawful. The Chief Justice said of the case of Curry v. Walter (c) that, though of great authority in itself and deriving additional weight from the manner in which it is mentioned by Law rence, J., in The King v. Wright, (d) "it has not, however, received the sanction of subsequent judges; and it differs in some important facts from the present case. It was an account of a proceeding in this court, a court instituted for final determination as well as preliminary inquiry, and whose doors are, as they ought to be, open to so many of the public as can be conveniently accommodated within its walls. The proceeding now in question was before justices (a) Rex v. Fleet (1 B. & Ald. 379). (b) 3 B. & C. 556. (c) 1 Bos. & P. 525. (d) 8 T. R. 293.

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CHAPTER IX.

Later cases.

of the peace, and was of a kind which they may lawfully conduct in private whenever they may think fit to do so. That proceeding terminated by a refusal of the application, and not by putting the subject into a train for further inquiry and trial. The proceeding in question terminated, in the first instance, by holding the accused to bail for his future appearance before the justices, and finally by holding him to bail to take his trial before a jury. Such a trial, therefore, might be expected at the time of each of the publications. This court has, on more than one occasion within a few years, been called on to express its opinion judicially on the publication of preliminary and ex parte proceedings, and has on every occasion delivered its judgment against the legality of such proceedings, as was done by Mr. Justice Heath in the year 1804, in the case of The King v. Lee. (a) Other judges have delivered opinions to the same effect, and it is well known that many other persons have lamented the inconvenience and the mischievous tendency of such publications. They were, within the memory of many persons now living, rare and unfrequent; they have gradually increased in number, and are now unhappily become very frequent and numerous; but they are not on that account the less unlawful, nor is it less the duty of those to whom the administration of justice is entrusted to express their judgment against them;" and his Lordship added, that the court wished it not to be inferred from the preceding remarks that they thought the publication of ex parte proceedings even in that court was a matter allowable by law.

Lord Campbell (b) points out that, in all the cases relied on in support of the proposition that the publication of any preliminary proceeding before a magistrate is unlawful, there were vituperative comments accompanying the statement of the evidence, or some aggravation attending the publication of the report, or some peril which was likely to be caused to the person complaining of it, and that the same objection could not exist in the case of a report of a preliminary inquiry before a magistrate, which turned out to be unfounded and was dismissed.

"We are not prepared," said his Lordship, in delivering the judgment of the Court of Queen's Bench in the case of Lewis v. Levy, " to lay down for law that the publication of preliminary inquiries before magistrates is universally lawful; but we are not prepared to lay down for law that the publication of such inquiries is universally unlawful;" and (a) 5 Esp. 123.

(b) Lewis v. Levy (El. Bl. & El. 557; 27 L J. 287, Q. B.

PART IV.

of the case of Curry v. Walter he says that it "has been often criticised, but never overturned, and often acted upon." CHAPTER IX. The legality of publishing an accurate and impartial report of the preliminary proceeding, where it has ended in the dismissal of the charge, must, as before stated, be taken to be now settled by the decision in Lewis v. Levy ; (a) and some eminent judges have recently refused to join in unqualified disapprobation of accurate and impartial reports of proceedings which do not so end, but in which the accused is held to bail or committed for trial.

"We give no opinion," said Lord Campbell, in the case last referred to, "in favour of the general legality of publishing reports of preliminary examinations before a magistrate, where the party accused has been committed or held to bail for an indictable offence; but we cannot join in the sweeping condemnation of police reports which has been pronounced obiter, before the benefit arising from those reports had been fully experienced. We believe that they often lead to the detection and punishment of crime, and that they sometimes assist in the vindication of character. Against the severe denunciations of police reports by several eminent judges may be placed the following opinion of Lord Denman, C.J., solemnly delivered by him before a select committee of the House of Lords, in the year 1843, on the law of libel: 'I have no doubt that' police reports are extremely useful for the detection of guilt, by making facts notorious, and for bringing those facts more correctly to the knowledge of all parties interested in unravelling the truth. The public, I think, are perfectly aware that those proceedings are ex parte, and they become more and more aware of it in proportion to their growing intelligence; they know that such proceedings are only in course of trial, and they do not form their opinion till the trial is had. Perfect publicity of judicial proceedings is of the highest importance in other points of view, but in its effects on character I think it desirable. The statement made in open court will probably find its way to the ears of all in whose good opinion the party assailed feels an interest, probably in an exaggerated form, and the imputation may often rest on the wrong person both these evils are prevented by correct reports.'

And Cockburn, C.J., in a still more recent case, (b) referring to the modern growth of the right to publish reports of judicial proceedings, said: "Till a comparatively (a) El. Bl. & El. 537; 27 L. J. 287, Q. B.

(b) Wason v. Walter (8 B. & S. 730; L. Rep. 4 Q. B. 94; 19 L. T. N. S. 418; 38 L. J. 34, Q. B.

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Result of cases.

Proceedings

before magis

trate in matter

recent time the sanction of the judges was thought necessary even for the publication of the decisions of courts upon points of law. Even in quite recent days judges, in holding publication of the proceedings of courts of justice lawful, have thought it necessary to distinguish what are called ex parte proceedings as a probable exception from the operation of the rule. Yet ex parte proceedings before magistrates, and even before this court-as for instance, on applications for criminal informations-are published every day, but such a thing as an action or indictment founded on a report of such an ex parte proceeding is unheard of; and if any such action or indictment should be brought, it would probably be held that the true criterion of the privilege is, not whether the report was or was not ex parte, but whether it was a fair and honest report of what had taken place, published simply with a view to the information of the public, and innocent of all intention to do injury to the reputation of the party affected."(a)

Having regard to these remarks of judges so distinguished, it appears exceedingly doubtful whether a correct, impartial, and dispassionate report of proceedings before a magistrate, which end in the accused being held to bail or committed for trial, would now be held a libel. We know, as a matter of fact, that such reports are daily published with impunity.

If a matter over which he has no jurisdiction is brought before a magistrate, the publication of a report of the proover which he ceedings, containing defamatory matter, cannot be justified on the ground of its being a correct and fair report of the proceedings of a legal court.

has no jurisdiction.

"As to magistrates," said Lord Campbell in Lewis v. Levy, (b) "if, while occupying the bench from which magisterial business is usually administered, they, under pretence of giving advice, publicly hear slanderous complaints over which they have no jurisdiction, although their names may be in the commission of the peace, reports of what passes before them are as little privileged as if they were illiterate mechanics assembled in an alehouse. Hence the well decided case of McGregor v. Thwaites."

In McGregor v. Thwaites, (c) a Mr. Prince and a Captain (a) See the case of Pinero v. Goodlake (15 L. T. N. S. 676).

(b) El. Bl. & El. 554; 27 L. J. 287, Q. B. Cf. Hibbins v. Lee (4 F. & F. 243), where Cockburn, C.J., laid it down that a public writer was privileged in discussing the conduct of magistrates in dismissing a charge of felony without fully hearing the evidence, and even in commenting upon the evidence given, in support of the view that the charge ought not to have been dismissed. (c) 3 B. & C. 556.

Antrim waited upon the lord mayor elect (who sat for the lord mayor) to request his advice as to three orphan children who had been brought home to England by Captain Antrim from Poyais on the Mosquito Shore in America, to which place a large number of persons had emigrated from Great Britain. A report of what occurred before the magistrate was published in a newspaper, of which the following was the important part: "Mr. Prince stated that about 200 of the victims of delusion had returned from the Mosquito Shore to Honduras in a state of utter destitution, and of disease which terminated the sufferings of a great part of them soon after. They must have all died but for the charity of the people and the authorities of Honduras. The poor creatures had been led by Mr. McGregor to expect a land where they would live in the greatest plenty, where everything was flourishing, and but little labour would be required: it was mentioned to them as a mark of the improvement of the place, that a fine theatre had been established and other establishments formed, indicative, not merely of civilization and comfort, but of luxury. Captain Antrim mentioned a charge which the poor creatures had preferred to him against McGregor. Most of those who sailed from Leith were poor people, who had by their frugality saved small sums of money of from 151. to 301.; McGregor learned the property which the settlers had with them, and, telling them that Scotch money would not pass at the settlement, persuaded them to give it all up to him, and take his drafts for the amounts upon his bankers at Poyais. The savings were all given up to him, and it is perhaps unnecessary to add, that the settlers, on their arrival at the houseless wilds of Poyais, found that no such thing as a banking house was in existence. Captain Antrim regretted that he had not arrived sooner, as another ship had sailed with settlers for the same place just before his arrival, who, he feared, would also fall a sacrifice. He had thought it his duty to make the statement publicly, that the poor might be put on their guard." To an action of libel for the publication of this report, the publisher pleaded that Mr. Prince and Captain Antrim did go before the magistrate and make the statements charged as libellous, and that the alleged libel contained a correct and fair account of the proceedings before the magistrate, and that the facts charged in it were true. The jury having found that the report was a true, fair, and correct report of the proceedings before the lord mayor elect, but that the facts charged in it were not true, the court held that the publication could not be justified on the ground of its being a correct and fair report of what

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CHAPTER IX.