Ex parte Jose Luis Fernandez
| Jurisdiction | England & Wales |
| Judgment Date | 03 May 1861 |
| Date | 03 May 1861 |
| Court | Court of Common Pleas |
English Reports Citation: 142 E.R. 349
IN THE COURT OF COMMON PLEAS
S. C. 30 L. J. C. P. 321; 4 L. T. 324; 7 Jur. N. S. 571; 9 W. R. 832. Referred to, Dale's case, 1881, 6 Q. B. D. 417; R. v. Maidenhead Corporation, 1882, 8 Q. B. D. 352; 9 Q. B. D. 494; R. v. Central Criminal Court JJ., 1883, 11 Q. B. D. 484; In re Davies, 1888, 21 Q. B. D. 238; Scott v. Scott, [1912] P. 291; [1913] A. C. 417.
COMMON BENCH REPORTS. New Series. CASES ARGUED and DETERMINED in the COURT of COMMON PLEAS, and in the EXCHEQUER CHAMBER, in Easter and Trinity Terms and Trinity Vacation, 1801. By JOHN SCOTT, Esq., of the Inner Temple, Barrister-at-Law. Vol. X. London, 1862. [1] cases argued and decided in the court of common pi^eas, in easter term, in the twknty-fourth year of the reign of victoria. The Judges who usually sat in banco in this term, were, Erie, C. J., Willes, J., Byles, J,, and Keating, J. memoranda. On the firat day of this term, Mr. Serjt. Hayes, who had received a patent of precedence (to take rank next after Archibald John Stephens, Esq., Q. C.), was deaired to take bis aeat accordingly. ( Thomas Wheeler, LL.D., of the Inner Temple, who had been called to the degree of the coil during the last Vacation, also took his seat. He gave rings with the motto " Non sine Labore." [2] In the course of the last Vacation, the following gentlemen were respectively appointed Her Majesty's Counsel learned in the law:-William Dugmore, Esq., of Lincoln's Inn ; William Anthony CollinstEsq., of Lincoln's Inn ; Henry Warwick Cole, Esq., of, the; Inner Temple; John Fraser Macqueen, Esq., of Lincoln's Inn; Thomas Chambers, Esq., M. P. (Common Serjeant), of the Middle Temple; Edwin Plumer Price, Esq ,* of the Inner Temple; Josiah William Smith, Esq., of Lincoln's Inn; fochard Baggallay, Esq., of Lincoln's Inn; Anthony Cleasby, Esq.. of the Inner Temple ; Henry Mills, Esq., of the Middle Temple; the Hon. Adolphus Frederick Octavius Liddell, of :the Inner Temple; William IMiol Brett, Esq., of Lincoln's Inn; John Burgess Kafalake, Esq., of the Middle Temple; William Digby Seymour, Esq., M. P., 6f the Middle Temple ; John Duke Coleridge, Esq., of the Middle Temple; The Hon. George- Bentnan, M. P., of Lincoln's Inn ; George Mellish, Esq., of the Inner Temple. ahf24 tanf. zjc" /i.,-? [3] Ex parte jose Luis feunandez. May 3rd, 1861. [S. C. 30 L. J. C. P. 321 ; 4 L. T. 324; 7 Jur. N. S. 571 ; 9 W. R. 832. Referred to, Dale's cast, 1881, G Q. B. D. 417; LI. v. Mak/enkead Cvrpwatio-n, 1882, 8 Q. B. D. 352; 9 Q. B. D. 494; 11. v. Central Criminal Court JJ., 1883, 11 Q. B. D. 484 ; In re Damn, 1888, 21 Q. B. D. 238 ; Scott v. Scott, [1912] P. 291 ; [1913] A. C. 417.] On the trial at the assizes of an information against one C. for bribery alleged to have been committed by him at the election for a member of parliament, a witness was called on the part of the Crown, who had been examined before a Royal commission appointed to inquire into alleged corrupt practices at that election, and who had 340 350 EX PARTS FERNANDEZ 10 C. B. (N. 9.) 4. received from the commissioners a certificate under the 10th section of the 15 & 16 Viet. c. 57,-indemnifying the witness from " all penal actions, forfeitures, punishments, disabilities, and incapacities, and all criminal prosecutions to which he may have been or may become liable or subject at the suit of Her Majesty, &c., for anything done by him in respect of such corrupt practice,"-and, being asked, " Did you in the mpnth of April, 1859, receive any sum of money from Mr. C. 1" declined to answer the question, on the ground that his answer might tend to criminate himself; and, though told by the presiding judge that the certificate was a complete protection to him, and that he was bound to answer the question, he persisted in his refusal. The judge thereupon committed him to York Castle for six months, " for having wilfully and in contempt of the court refused to answer the said question," and further imposed upon him a fine of 5001. :-Held, that, the court of assize being a "superior court," the judge had jurisdiction to commit, and was not bound to set out at length in his warrant the cause of commitment,-his decision not being subject to review by the court above. Upon the trial at the last assizes at York of an information at the suit of the Attorney-General against one John Barf Charlesworth for bribery alleged to have been committed by him at a late election of a member of parliament for the borough of Wakefield, Jose Luis Fernandez, who was called as a witness for the Crown, was asked by the Solicitor-General,-"Did you in the month of April, 1859, receive any sum of money from Mr. Charlesworth 1" He declined to answer the question, on the ground that Hs answer might tend to criminate himself. It waa proved that Mr. Fernandez had been examined before a Royal commission appointed to inquire into alleged corrupt practices at the election for Wakefield in 1859, and that he had received from the commissioners a certificate under the 10th section of the 15 & 16 Viet. c. 57 (a): and it was submitted that this afforded the witness a complete indemnity. [4] The learned judge (Mr. Justice Hill) ruled that the witness was bound to answer the question, and accordingly put it to him again : and, upon his again refusing to answer it, alleging that he did so under the advice of counsel, who had informed him, that, though protected against any action, information, or indictment for his participation in any corrupt practice at the election in question, he still might be liable to an impeachment by the House of Commons, Mr. Justice Hill, after consultation with (a) The 9th section of that act enacts that, " for the more effectually prosecuting any inquiry under this act, every person who has been engaged in any corrupt practice at lor connectisd with any election of members or a member to serve in parliament for any county, division of a county, city, borough, university, or place to which any inquiry under this act relates, and who is examined as a witness, and gives evidence touching such corrupt practice before the commissioners appointed under this act to make such inquiry, and who upon such examination makes a true discovery to the best of his knowledge touching all things to which he is so examined, shall be freed from all penal actions, forfeitures, punishments, disabilities, and incapacities, and all criminal prosecutions to which he may have been or may become liable or subject, at the suit of Her Majesty, her heirs or successors, or any other person, for anything done by such f erson or persons, in respect of such corrupt practice ; and no person shall be excused from answering any questions put to him by such commissioners, on the ground of any privilege or on the ground that the answer to such question will tend to criminate such person."; And the ]0th section enacts that, "where any witness is so examined as aforesaid, suph witness phall not be indemnified under this act unless he receive from such com-mjssioners a icertificate in writing under their hands, stating that such witness has upon his examination made a, true disclosure touching all things to which he jias been so examined: and, if any action, information, or indictment be at any time pending in any court against any person so examined as a witness in manner above mentioned, for any corrupt practice at any election to which the inquiry made by such commissioners had reference, such court shall, on the production and proof of such certificate, stay the proceedings in any such action, information, or indictment, and may, in its discretion, award to such person, such costs as he may have been put to by such action, information, or indictment." 10C,B.(N.8. 8. EX PARTE FERNANDEZ 351 Mr. Justica Keating, who was [5] sitting in the adjoining court, committed the witness to York Castle for six months, and also fined him in the sum of 5001., for his contempt of court. The warrant of commitment was as follows :- " Yorkshire, to wit. " The Queen v. John Barf Gharlesivorth. " At the assizes held at the Castle of York, in and for the said county, on Thursday, the 7th day of March, in the 24th year of the reign of our sovereign lady Victoria, by the grace of (ik d, of the united kingdom of Great Britain and Ireland, Queen, Defender of the Faith, and in the year of our Lord 1861, before the Hon. Sir Hugh Hill, Knight, and the^Hon. Sir Henry Singer Keating, Knight, two of Her Majesty's justices assigned to take the said assizes according to the statute, &c. " On the trial of the information against the defendant for bribery alleged to have been committed by him on the election of a burgess to serve in parliament for the borough of Wakefield, Jose Luis Fernandez, a witness produced, sworn, arid examined on behalf of the Crown, having refused to answer a certain question touching the matter in. issue in the said information, put to him by Her Majesty's Solicitor General, of counsel for the Crown in that behalf, and the court having adjudged that the said Jose' Luis Fernandez was bound by law to answer the said question, and having required him so to do, he wilfully, and in contempt of the court, refused to answer the said question ; and he having wilfully persisted, and still so persisting in such his refusal, the said court doth therefore adjudge that the said Jose Luis Fernandez has been and is guilty of a contempt of court; and the said court doth order and adjudge that the said Jose Luis Fernandez be for such his contempt committed, and he is hereby committed to the custody of the [6] sheriff of the said county of York, and to his keeper at Her Majesty's gaol of the Castle of York, in and for the said county, to be there detained and kept in safe custody for the term of six calendar months from the day and year first above mentioned : And the said court doth further order and adjudge that the said Jose Luis Fernandez...
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Table of Cases
...Ex parte Barronet & Others 22 L.J.N.S.M.C. 25………..........................................................…..213 Ex parte Fernandez (1861) 10 C.B.N.S. 3, 38………….......................................................…………478 Eyo Ekpo v. The State (1972) 2 S.C. 26………………..............................