R v Carden
| Jurisdiction | England & Wales |
| Date | 1879 |
| Year | 1879 |
| Court | Divisional Court |
Criminal Law - Justices, Jurisdiction of, upon preliminary Inquiry into criminal Charge - Evidence - Libel, Truth of, not a Subject of Inquiry before Magistrate - 6 & 7 Vict. c. 96, ss. 4, 5, 6.
Upon an information for maliciously publishing a defamatory libel under the 5th section of 6 & 7 Vict. c. 96, the magistrate has no jurisdiction to receive evidence of the truth of the libel, inasmuch as his function is merely to determine whether there is such a case against the accused as ought to be sent for trial, and a defence based upon the truth of the libel under section 6 of the Act can only be inquired into at the trial upon a special plea framed in accordance with the terms of that section.
The province of a magistrate upon a preliminary inquiry into a charge of an indictable offence discussed.
THIS was an application for a mandamus directed to Sir Robert Carden, an alderman and magistrate of the City of London, commanding him to hear certain evidence upon an information for libel laid before him by Edward Levy Lawson against Henry Labouchere and Charles Wyman. The information did not charge the libel to have been published by the defendants knowing it to be false under the 4th section of 6 & 7 Vict. c. 96, but merely charged the publication of a defamatory libel under the 5th section. The application was made on behalf of the defendants, and the writ of mandamus asked for was in substance to the following effect, viz., to hear evidence in cross-examination by the defendants of the complainant and the complainant's witnesses, and direct evidence of the defendants and their witnesses to prove, first, that the alleged libel was not a false and defamatory libel: secondly, that it was a fair comment on a public man in a matter which was a question of public interest; thirdly, that the alleged libel was true in substance and in fact; fourthly, that it was for the public benefit that the alleged libel should be published; and fifthly, that it was not published knowing it to be false, and further, to hear all evidence relating to the libel and to the circumstances under which the same was published, and to the conduct of the complainant in relation thereto, with a view to the exercise of the discretion of the said alderman as to whether he should or should not commit the defendants for trial. And further to hear all evidence on cross-examination of the complainant and his witnesses going to their credit, and to bind over the witnesses to appear at the trial.
It appeared from the affidavits that, in the course of the hearing of the charge before the magistrate, a claim was made on the part of the defendants to cross-examine the complainant and the complainant's witnesses, and to call witnesses, in respect of certain matters tending to prove the truth of the defamatory statements contained in the libel. The libel appeared to have related to the conduct of the prosecutor in his management of the Daily Telegraph newspaper, and among other things called him “a disgrace to journalism.” The questions, which it was sought to put in cross-examination, and the evidence which it was sought to call on behalf of the defendants, appeared to relate to the conduct by the prosecutor of the Daily Telegraph.
The magistrate refused to admit the evidence, and postponed the further hearing to admit of the correctness of his ruling being questioned by application for a mandamus. A rule nisi had consequently been obtained for a mandamus as above, against which
Sir John Holker, A.G., Sir H. S. Giffard, S.G., Ballantine, Serjt., and Poland, for the prosecutor, shewed cause. Evidence to prove the truth of the libel was clearly inadmissible before the magistrate. Previously to Lord Campbell's Act, 6 & 7 Vict. c. 96, the truth of a libel afforded no defence to a criminal charge of libel. By that statute a defence based upon the truth of the libel may be pleaded specially to the indictment, and so rendered available at the trial, but the magistrate has no jurisdiction to go into the question whether the libel was true, and must commit even although it should be proved to be true: Reg. v. Townsend.F1 The case of Ex parte EllissenF2 did not overrule Reg. v. Townsend.F1 There the charge was under the 4th section of Lord Campbell's Act, of publishing a libel knowing it to be false, and the magistrate, having refused to hear evidence as to the truth of the libel, was held by the Court to have declined to hear and determine the matter which he was bound to hear and determine, and accordingly a mandamus issued. This is altogether a different case. The information is for a simple libel under s. 5 of Lord Campbell's Act. The present application is that the magistrate, in the course of an inquiry on a matter within his jurisdiction, may be ordered to hear certain evidence entirely irrelevant to the question which he has to investigate. There is no statutory provision rendering it the duty of the magistrate to receive and record any evidence which may possibly be serviceable to the defendant at the trial for any purpose such as the mitigation of punishment. By Jervis's Act, 11 & 12 Vict. c. 42, s. 17, the magistrate is to take down only what is material to the charge, and the terms of the Act clearly shew that his duty is merely to inquire whether there is a sufficient case for a committal or not. Russell Gurney's Act, 30 & 31 Vict. c. 35, s. 3, was intended to remedy the hardship caused to poor persons who could not call their witnesses at the trial, and its provisions are confined to witnesses that are material to disprove the charge. It was not intended to extend the scope of the inquiry before the magistrate to all matters that might be serviceable to the prisoner.
It would be most inconvenient that all matters which might tend to throw obloquy on the prosecutor might be gone into before the magistrate though not amounting to a legal defence.
Gorst, Q.C., and Lumley Smith, appeared for the magistrate, Sir Robert Carden.
Russell, Q.C., Wildey Wright, and McDonell, supported the rule. The various statutes relating to the procedure before magistrates from 2 & 3 Ph. & M. c. 13 down to Jervis's Act, 11 & 12 Vict. c. 42, have made it the duty of the magistrate to inquire into all the facts and circumstances of the case. The magistrate here held that his duty was simply to inquire whether there was a primâ facie libel and a publication by the defendants. It does not follow that because the magistrate has not jurisdiction to decide on certain questions that may arise on the facts and circumstances taken as a whole, that, therefore, he is not to receive the evidence as to the facts and circumstances. It is contended, for instance, that the defendant is entitled to cross-examine before the magistrate as to circumstances that would go in mitigation of punishment, and to have the result of such cross-examination recorded by the magistrate. The witnesses might die or be ill, and their depositions would then be read at the trial, and the defendant would lose the benefit of mitigating circumstances connected with the offence that might have been elicited from them, while their...
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