then the defendant shall have the benefit of the said recogni- CHAP. XXXII. zance to compel them thereunto (g). And where, on the trial of an information for libel, the jury found a verdict for the defendant, but the judge certified that there was reasonable cause for exhibiting the information; the defendant afterwards obtained a side-bar rule for costs under the Libel Act (): and it was held, that the defendant was entitled to costs under that act and that, although by the former statute the judge was empowered to certify so as to deprive him of costs, no such power was given by the latter enactment (8). after verdict of The costs of showing cause against an order nisi for the Costs of showing cause, filing of a criminal information for libel may be recovered of allowed to the prosecutor under the above section of the Libel Act, 1843, defendant by a defendant who is found "Not Guilty," on the trial of Not Guilty. the information (t). And no appeal lies against an order of the King's Bench Division, upholding the Master's allowance of such costs on taxation (u). The Libel Act, 1843, (s. 8,) as to costs, does not apply to informations filed ex officio by the Attorney-General; but only to those filed by order of the court, on the relation of a private prosecutor, and to indictments for libel (r). And where the information purported to be filed by the Queen's Coroner, without stating "at the instance of A. B.," &c., the Court of Queen's Bench in Ireland refused after verdict of "Not Guilty," to alter or amend the information by inserting the name of the private prosecutor; but held, that the defendant was entitled to tax his costs against such private prosecutor notwithstanding (y). (q) 4 & 5 Wm. & M. c. 18, s. 2. () 6 & 7 Vict. c. 96, s. 8. (8) The Queen v. Latimer, 15 Q. B. 1080; 20 L. J. 129. (t) The Queen v. Steel and others, 1 Q. B. D. 482; 45 L. J. 391. It has been held by the Court of Queen's Bench in Ireland, that a defendant, under such circumstances, is only entitled to the costs incurred subsequently to the filing of the informa tion; Reg. v. Cavendish, 12 Ir. L. R. (u) Ibid., 2 Q. B. D. 27; 46 L. J. (x) See The Queen v. Duffy, 9 Ir. L. R. 329. (y) Reg. v. Cavendish, 11 Ir. L. R. 511. 462 CHAPTER XXXIII. Conditions under which Indictments CHAPTER XXXIII. PROCEEDINGS BY INDICTMENT; AND SUMMARY Preliminary procedure prior to Indict ment. Order of Judge required for prosecu tion of Newspaper proprietor, &c. Jurisdiction of Justices to require sure- Libels indictable at Common Law. not actionable. Libels indictable by statute. Accessories to the publication of a libel. Libels on a class or body. for libel may be preferred. Objections to indictment, when, and Crown Office Rules as to pleadings. Preliminary Proceedings.-It will now be necessary to state the conditions under which Indictments for libel may be preferred. It will be seen, that with one or two exceptions only, no such indictment can now be preferred, unless there for libel may has been a preliminary investigation of the charge before a justice of the peace, or a committal for trial of the person charged. be preferred. By the 4 & 5 Wm. IV. c. 36 (a), s. 13, no bill of indictment for any misdemeanour (other than perjury or subornation of perjury) which can or may be presented to the grand jury at any sessions of the peace for the city of Westminster and borough of Southwark, and counties of Middlesex, Essex, Kent, and Surrey, respectively, in which such misdemeanour was committed, shall be presented to the grand jury to be summoned under the authority of this Act, unless the prosecutor, or other person presenting such indictment, shall have been bound by recognizance to prosecute or give evidence; or unless the accused shall have been committed to or detained in custody, or bound by recognizance to appear at the said It was formerly held that, notwithstanding this sessions. (a) An Act for establishing a court for the trial of offences committed in the Metropolis and parts adjoining. section, it was not necessary for the purpose of giving jurisdiction at the Central Criminal Court, in a prosecution for libel, that the prosecutor should have entered into recognizance to prosecute: or that the defendant should have been in custody or been bound over to appear (b). And the Act for preventing vexatious indictments for certain misdemeanours, did not include the offence of libel within its provisions (c). CHAPTER XXXIII. Indictments But, by the Newspaper Libel and Registration Act, 1881 (d), Vexatious every libel, or alleged libel, and every offence under that Act, Act made is to be deemed to be an offence within and subject to the pro- applicable to visions of the Act of 22 & 23 Vict. c. 17, intituled "An Act to prevent vexatious indictments for certain misdemeanours." It will be observed, that the section applies to all libels, whether published in a newspaper or otherwise. But the previous sections are restricted to libels published by certain persons, in newspapers. Prior to the Act of 1881, an indictment for a libel might always be preferred at assizes, and courts of oyer and terminer, notwithstanding that there had been no previous investigation of the charge before a justice of the peace; or, having been such, the magistrate refused to send the case for trial, or to bind any person by recognizances to prosecute; as libel was not included in the offences named in the Vexatious Indictments Act. But now, an indictment for the publication of a libel cannot be preferred unless there has been a preliminary investigation of the charge before a magistrate or justice of the peace, and the prosecutor or other person bound by recognizance to prosecute or to give evidence; or unless the accused has been committed, or bound by recognizance to appear to answer to an indictment for the offence; or unless the indictment be preferred by direction, in writing, of a judge of a superior court, or of the Attorney or Solicitor-General (e). libels. ment. Where a person is charged with the offence of publishing a Preliminary libel, if after the evidence is given the same is not, in the before Justices proceedings opinion of the justice or justices, sufficient to put the accused prior to Indictupon his trial, he must be discharged; but if in the opinion of the justice or justices such evidence is sufficient, or raises a strong or probable presumption of guilt, then such justice or justices must, instead of committing the accused to prison, (b) Reg. v. Gregory, 7 Q. B. 274; 14 L. J. M. C. 82. (c) 22 & 23 Vict. cap. 17. (e) See the Vexatious Indictments Act, 22 & 23 Viet. c. 17, made applicable to libel by 44 & 45 Vict. c. 60, s. 6. CHAPTER Justices must accept respon sible bail. Mandamus to jurisdiction. admit him to bail or bind him over by recognizance, to surrender and take his trial for the offence charged. And this applies to all charges of libel, whether defamatory, obscene, or seditious. And where parties are apprehended and charged before justices with using seditious language; they may be required to find bail for their appearance to take their trial for the offence, and to be of good behaviour in the meantime : and justices cannot refuse to accept responsible bail; and will not be justified in any unreasonable detention of the accused in prison. And where justices act oppressively, and refuse to accept substantial bail, they will be liable to prosecution by indictment, or by criminal information (ƒ). Although magistrates have a discretionary jurisdiction as to they decline issuing a summons after hearing the complaint, such discretion is a judicial discretion, and must be exercised in a legal and proper manner, upon the facts appearing in evidence before them; and not upon any extraneous matter apart from the evidence (g). If, on a preliminary investigation before a magistrate, the matter charged as libellous appears to the magistrate to be of a grossly defamatory nature, or such as has a tendency to provoke a breach of the peace; then, if a prima facie case of publication be made out, it is the duty of the magistrate, after hearing the evidence, either to hold the accused to bail, or to bind him by recognizance to appear to answer to an indictment for the offence; for a person who has been libelled is entitled to such protection as the law affords, and the magistrate has no right to decline jurisdiction by refusing to commit, on the ground that the prosecutor has his remedy by action at law, or that the matter is more fitting for a civil tribunal than for the exercise of criminal jurisdiction; and the magistrate, in such case, may be compelled by mandamus, to hear and determine the case. But it is only where the magistrate declines to exercise the jurisdiction with which he is invested, that the court will interfere by mandamus. Proceeding By section 2 of the Vexatious Indictments Act (h) (now made where Justice, applicable to the offence of libel) (i), where any charge or refuses to send for trial. (f) See The Queen v. Badger and another, 12 L. J. (N. S.) M. C. 66. (g) Vide The Queen v. Adamson and others (justices, &c.), 45 L. J. M. C. 46. () 22 & 23 Vict. c. 17. ( 44 & 45 Vict. c. 60, s. 6. It should be observed that this section of the "Newspaper Libel and Registra tion Act, 1881," applies to all libels, whether published in a newspaper or otherwise. The other sections of that Act apply exclusively to libels complaint is made before one or more justices of the peace that any person has committed any of the offences therein mentioned (libel now included) within the jurisdiction of such justice, and such justice shall refuse to commit or to bail the person charged with such offence to be tried for the same; then in case the prosecutor shall desire to prefer an indictment respecting the said offence, the said justice is required to take the recognizance of such prosecutor to prosecute the said charge or complaint, and to transmit such recognizance, information, and depositions, if any, to the court in which such indictment ought to be preferred; in the same manner as such justice would have done in case he had committed the person charged to be tried for such offence. CHAPTER XXXIII. wife. A married woman cannot prosecute her husband for the Husband and publication of a personal libel upon her. And the 12th section of the Married Women's Property Act, 1882, giving a woman the same remedies and redress by way of criminal proceedings for the protection and security of her own separate property as if she were a feme sole, does not enable a woman to take criminal proceedings against her husband for a personal libel upon her (k). By the Law of Libel Amendment Act, 1888 (/), no criminal Order of Judge prosecution can now be commenced against any proprietor, prosecution of required for publisher, editor, or any person responsible for the publication Newspaper of a newspaper for any libel published therein, without proprietor, &c. the Order of a judge at Chambers being first had and obtained (m). Such application must be made on notice to the person accused, who is thereby to have an opportunity of being heard against such application (n). The object of the enactment is to prevent frivolous and vexatious prosecutions for libel, against the proprietors and others responsible for the publication of newspapers. It does not apply to the procedure by criminal information for libel, published by the proprietor and others responsible for the publication of the newspaper. (k) The Queen v. The Lord Mayor of London, 16 Q. B. D. 772; 55 L. J. M. C. 118. () 51 & 52 Vict. c. 64, s. 8. (m) This statute repeals the 3rd section of the "Newspaper Libel and Registration Act, 1881," which re F.S. quired the fiat of the Director of (n) 51 & 52 Vict. c. 64, s. 8. H H |