RBG. V. FRANKLIN. 1883. broad ground of negligence and not upon the narrow ground proposed by the learned counsel, because it seems to me and I may say that in this view my brother Mathew agrees-that the mere fact of a civil wrong committed by one person against another ought not to be used as an incident which is a necessary Manslaughter step in a criminal case. I have a great abhorrence of construc- -Negligence. tive crime. We do not think the case cited by the counsel for the prosecution is binding upon us in the facts of this case, and, therefore, the civil wrong against the refreshment-stall keeper is immaterial to this charge of manslaughter. I do not think that the facts of this case bring it clearly within the principle laid down by Tindal, C.J. in Reg. v. Fenton. If I thought this case was in principle like that case I would, if requested, state a case for the opinion of the Court of Criminal Appeal. But I do not think so. It was not disputed that the prisoner threw the box over the pier, that the box fell upon the boy, and the death of the boy was caused by the box falling upon him. Gill, for the prisoner, relied upon the point that there was not proved such negligence as was criminal negligence on the part of the prisoner. FIELD, J., in summing up the case to the jury, went carefully through the evidence, pointing out how the facts as admitted and proved affected the prisoner upon the legal question as he had explained it to them. The jury returned a verdict of guilty of manslaughter. Guilty. The prisoner was sentenced to two months' imprisonment. HIGH COURT OF JUSTICE. QUEEN'S BENCH DIVISION. Monday, January 22, 1883. Ex parte HUBERT AND Co. (a) Newspaper libel-Fiat for criminal prosecution-Discretion of the Director of Public Prosecutions—44 & 45 Vict. c. 60, s. 3. When the Director of Public Prosecutions in England has refused to grant his fiat under 44 & 45 Vict. c. 60, s. 3, for a criminal prosecution against the proprietor, &c., of a newspaper for a libel published therein, the High Court of Justice has no power to interfere, the matter being left by the enactment entirely to his discretion. THIS HIS was an application on behalf of Messrs Hubert, Hurter, and Son, of Adam-street, Adelphi, London, for a rule nisi calling on the Director of Public Prosecutions to show cause why a mandamus should not issue commanding him to grant his fiat, under the Newspaper Libel and Registration Act, 1881 (44 & 45 Vict. c. 60, s. 3), to authorise a criminal prosecution against the proprietor and publisher of a German newspaper called Der Blitz, circulating largely among Germans, for a libel. The applicants were the sole agents in England for the sale of the "Tivoli Beer," made by a Berlin Brewery Company, and registered under the Trade Marks Protection Act as "Tivoli Lager Beer," and had advertised the beer in the Der Blitz newspaper, but on refusing to continue their advertisements, the following paragraph was published in the paper under the head of notices to correspondents:-"T. L. Islington.-Among the many adulterated beers of Berlin, it is said, also the Tivoli beer and the Brewery has been fined 5000 marks. Whether the beer is injurious to health you must find out for yourself." The affidavit stated that the paragraph could only refer to the beer for which the applicants were the agents, as there was no other Tivoli beer sold in England made at Berlin; that the statement therein was unfounded; and that the paragraph was calculated to do the applicants' firm very serious injury unless its falsehood were at once established by a criminal prosecution; that a civil action for damages would not be effective, and that it (a) Reported by JOHN THOMPSON, Esq., Barrister-at-Law. was essential that the libellous imputation should be speedily withdrawn or refuted. On an application being made by Messrs. Hubert and Co., to the Director of Public Prosecutions for his fiat to allow them to institute a criminal prosecution against the proprietor and publisher of the newspaper he declined to grant it in these terms:-"The director does not think it a case in which it is necessary to authorise you to institute criminal proceedings." Besley for the applicants.-The 44 & 45 Vict. c. 60, s. 3, enacts that "No criminal prosecution shall be commenced against any proprietor, publisher, editor, or any person responsible for the publication of a newspaper for any libel published therein without the written fiat or allowance of the Director of Public Prosecutions in England, or Her Majesty's Attorney-General in Ireland, being first had and obtained." Sect. 4. "A court of summary jurisdiction upon the hearing of a charge against a proprietor, &c. (as in sect. 3) for a libel published therein may receive evidence as to .. ... and the court, if of opinion after hearing such evidence, that there is a strong or probable presumption that the jury on the trial would acquit the person charged, may dismiss the case." Sect. 5. "If a court of summary jurisdiction, upon the hearing of a charge against a proprietor, &c. (as in sect. 3) for a libel published therein, is of opinion, that though the person charged is shown to have been guilty, the libel was of a trivial character, and that the offence may be adequately punished by the powers of this section, the Court may, with the assent of the person charged, deal summarily with the case, and adjudge him to pay a fine not exceeding 501." It was contended in support of the application that under the above Act the Director of Public Prosecutions was bound to grant his fiat as soon as it appeared that the publication complained of was libellous, and that he could not exercise his discretion as to whether the libel was a serious or a trivial one, or whether a civil action for damages would answer every purpose: that sects. 4 and 5 showed that these questions were questions for the court of summary jurisdiction when the charge was instituted, and not for the director to decide. It was not intended to deprive a party of his criminal remedy for libel merely upon a private inquiry. POLLOCK, B.-This is an application for a mandamus to the Director of Public Prosecutions, to issue his fiat for a prosecution under sect. 3 of the 44 & 45 Vict. c. 60, s. 3. It is well to see what is the position and duty of the Director of Public Prosecutions under the Act of 1879 (42 & 43 Vict. c. 22). Sect. 2 empowers the Secretary of State to appoint a Director of Public Prosecutions, whose duty it shall be, under the superintendence of the Attorney-General, to institute, undertake, or carry on such criminal proceedings, and to give such advice and assistance to chief officers of police, clerks to justices, and other persons concerned in any criminal proceeding respecting the conduct of that proceeding as may be prescribed by regulations under the Act, Ex parte HUBERT AND Co. 1883. Criminal pro secutions Fiat against newspapers of Public Pro secutor. Ex parte Co. 1883. of Public Prosecutor. or directed in a special case by the Attorney-General. It seems, HUBERT AND therefore, that the intention and object of that Act were, owing to the manifold duties of the Attorney-General, to appoint another officer to act under his superintendence, so as to relieve him to some extent of the onerous duties cast upon him. One of these Criminal prosecutions duties is, as is well known, to grant his fiat in certain cases for against news- criminal prosecutions. Then by the Act of 1881 (44 & 45 Vict. papers-Fiat c. 60) the Legislature dealt with one class of such cases, the prosecution of newspaper proprietors for libels published in their papers. It has never yet been suggested that the exercise by the Attorney-General of the discretion vested in him, either by the common law or by statute, has been controlled by this court. That being so, sect. 3 of the Act of 1881 provides that no criminal proceedings shall be instituted against the proprietor, publisher, editor, or other person responsible for the publication of a newspaper, for any libel published therein without the written fiat or allowance of the Director of Public Prosecutions in England or Her Majesty's Attorney-General in Ireland being first had and obtained. That Act was a kind of settlement between the public on the one hand and the newspaper proprietors on the other. On the one hand the names of the proprietors of newspapers are to be registered under the Act, and on the other they are to be protected from what the Legislature deemed to be not necessarily trivial, but improper or unnecessary criminal prosecutions for libel. Accordingly the discretionary power given to the Director of Public Prosecutions by sect. 3 does not deal with the question of "libel or no libel." It assumes a libel, and also that there may be cases of libel in which it is not desirable that there should be a criminal prosecution-hence a discretion is given to the Director of Public Prosecutions to allow or not to allow his fiat for a criminal prosecution. In the present case an application for his fiat has been made to him, and he, in the exercise of his discretion, has come to the conclusion that it is not a case in which a criminal prosecution is desirable. It appears to me to be clear that the discretion is vested solely in him by the Act. It was attempted to found an argument upon sect. 5, which gives a court of summary jurisdiction, in cases where the libel is of a trivial character, power, with the assent of the defendant, to deal with the case summarily by a fine. The object of that section is quite different from that of sect. 3. Sect. 5 gives a discretion to the magistrate on the hearing of the charge. Sect. 3 requires the fiat of the Director of Public Prosecutions as a condition precedent to the institution of a criminal charge. There is no reasonable doubt as to the construction of sect. 3, and therefore no rule will be granted. MANISTY, J.-I am of the same opinion. To accede to the contention of Mr. Besley would really be to repeal sect. 3, which is confined to "proprietors, publishers, editors, or other persons responsible for the publication," of a newspaper, leaving other persons who may be responsible for a libel published therein in the same position as they were before. The court must give some effect to the enactments in sect. 3, but on the construction contended for there would be none. Sect. 3 clearly assumes the existence of a libel, but enacts that there is to be no criminal prosecution for it against the persons enumerated, without the fiat of the Director of Public Prosecutions. Rule refused. Ex parte HUBERT AND Co. 1883. Criminal pro secutions against newspapers-Frat of Public Pro WORCESTER WINTER ASSIZES. Tuesday, Jan. 23. (Before Baron HUDDLESTON.) REG. v. PERRY. (a) Libel-Letters from employer to employed-Privileged occasion. The defendant, the wife of a tradesman, being informed that a female assistant in her husband's employment was dishonest, wrote at his request and sent a letter accusing her of theft, and strongly reproaching her. On an indictment for libel Held, that the occasion was privileged, and that, therefore, in the absence of malice the defendant was not liable, and Held also, that the terms of a letter written under such circumstances ought not to be too nicely criticised. AT T the Winter Assizes in and for the city of Worcester, before Huddleston, B., on the 23rd day of January, 1883, Kate Henderson Speake was indicted for publishing a false and defamatory libel of Emma Blanche Milward, with intent to provoke a breach of the peace, and to injure the said E. B. Milward in the exercise of her calling of a shop assistant. The prosecutrix had been for some time in the employment of the defendant's husband as a shop assistant, and on the 18th day of October, 1882, certain irregularities on the part of the prosecutrix had been reported to the defendant, who sent to the prosecutrix the following letter, which was the libel complained of: Miss Milward, 2, Foregate-street, Oct. 17th, 1882. I am commissioned by Mr. Perry to inform you that if you want to save yourself from further exposure get out of Worcester soon as you can and don't on any account come near this place again as neither myself or Mr. Perry will grant you a (a) Reported by REGINALD B. D. ACLAND, Esq., Barrister-at-Law. secutor. |