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2. IDENTIFICATION.

is essentially a question for a jury: Laycock, 6 Cr. A. R. 212, 1911; but see Gilling, 1916.

During trial] See De Berenger.

By one witness] may not be sufficient: Witton, 6 Cr. A. R. 149, 1911: c. q.

By photograph] See Index, Witness, and Morrison, below.

By handwriting] In G. H. Williams, the C. C. A. was not satisfied with this alone; nor in T. Rickard, 1918: c. q.

By finger-prints] Such evidence alone may be sufficient: Castleton, 3 Cr. A. R. 7, 1909. The court may itself examine them: F. Bacon, 11 Cr. A. R. 90, 1915.

By voice] For an instance, see Keating, 2 Cr. A. R. 61, 1909.

Duty of police] In Dickman, Alverstone L.C.J. said that it was elicited from one witness in cross-examination, that when he went down for the purpose of seeing if he could identify Dickman he was first invited by somebody, possibly on behalf of the police, to look through a window, and on doing so did see, sitting alone, the' appellant. 'We need hardly say that we deprecate in the strongest manner any attempt to point out beforehand to a person coming for the purpose of seeing if he could identify another, the person to be identified, and we hope that instances of this being done are extremely rare. I desire to say that if we thought in any case that justice depended upon the independent identification of the person charged, and that the identification appeared to have been induced by some suggestion or other means, we should not hesitate to quash any conviction which followed. The police ought not, either directly or indirectly, to do anything which might prevent the identification from being absolutely independent, and they should be most scrupulous in seeing that it is so.'

In Bundy, 5 Cr. A. R. 270, 1910, there was the following crossexamination: When you picked' appellant out, you had seen him before? Yes, I saw his back.' 'But you did not see his back at the police-station?-No.' Then how came you to pick out this man?'Because he very much resembled the man the police had suspicion of' and witness afterwards admitted the detective had told him of their suspicions of the appellant': c. q.; it was an extremely improper thing to do': per Pickford J. So T. Finch, 12 Cr. A. R. 77, 1916, on the authority of Bundy: failure to point out that appellant had not been identified in some cases.

In Morrison, 6 Cr. A. R. 170, 1911, the C. C. A. approved of the judge telling the jury that they must be satisfied that certain witnesses

had not made an honest mistake arising from the fact that before they picked out the prisoner at the police-station, they had had the means, if they had chosen to use it, from the descriptions and photographs in the newspapers, of knowing what was the personal description of the man they were going to identify': they thought it was monstrous' that anyone's photograph should be published simply because he is accused of a crime,' and added, ‘if we thought that any of the jury had been misled because the witnesses were in fact identifying a photograph when they were purporting to identify a man, we should not hesitate to allow this appeal.'

When two boys were taken to a guard-tent where there was only one other person beside the appellant, and a police-sergeant asked, 'Is that the man?' Alverstone C.J. said: 'That is not a satisfactory way of identification, whether the persons identifying were young or old. It is not right to point out and ask questions in this way. The usual and proper way in such cases is to place the suspected man with a sufficient number of others and to have the identifying person pick out a man without assistance [The trial judge] told the jury that they must ask themselves if the identification was sufficient. We do not think this a sufficient direction. He should have pointed out that the boys, having both failed earlier to identify, had only acquiesced in a suggestion rather than positively identified': T. Chapman, 7 Cr. A. R. 55, 1911: c. q. So in G. H. Williams, 8 Cr. A. R. 84, 1912, where appellant was alone when identified. Though the conviction was not quashed, the same condemnation was repeated in Cartwright, 10 Cr. A. R. 221, 1914.

Evidence of identification-extent of] See Christie, 1914. Where there were six counts for larceny and one for receiving, the issue being identification, and fourteen persons identifying defendant, the jury ought to have been directed that if they were satisfied with the defence on some counts, they might acquit on all: Finch, 1916: c. q.

In prison] A Lords' committee appointed to report on the case of Gregg, under sentence of death for treason, reported that two persons sent by them to the prison had made affidavits that he had been previously acquitted of counterfeiting coin (while a woman of his name was convicted and burnt' for it), and that he denied it: they sent to search the Newgate books: 14 St. Tr. 1386, 1708.

1. Parties]. The parties' in a criminal proceeding are the crown, and 'it seems that the King himself cannot sit in judgment upon any indictment, because he is one of the parties to the suit: 3 Hawk. 2, 1, 2. 'When the grand jury or the magistrate has allowed the proceedings to affect the accused, the proceeding is not the private prosecutor's. His name never, as far as I can trace, appears on the record; the King can control the whole proceedings; he can deprive the private prosecutor of any voice in them by taking over the prosecution. If the accused formally pleads, the replication where there is a private prosecutor runs: The King's Coroner, or Clerk of Arraigns, or Clerk of Assize. who for our Lord the King in this behalf prosecutes, &c. ... per Scrutton J., in Re Boaler, below. Thus 'prosecutor' used of the person (chiefly) affected by the crime, though a convenient word, is strictly inaccurate, as the crown is invariably the prosecutor. See Trial, below, and cf. 46-7 V. 51, 53 (1): the director of public prosecutions not to be deemed a private prosecutor.

But (at any rate, in the Criminal Ev. A. 1898) 'prosecutor' means a living person: Biggin, 14 Cr. A. R. 87, 1919: c. q. See Addenda.

Information] An information is an allegation that a misdemeanour has been committed, made by the Attorney-General or other person filing it in court. Criminal informations in the High Court may be resorted to in the case of indictable misdemeanours, but not in the case of treason or felony. They are of two kinds: (1) ex-officio, filed by the Attorney-General, as of right; (2) filed by the King's Coroner and Attorney [viz., the Master of the Crown Office] under special order of the High Court (K. B. D.), giving leave to file it, which is mide on an application in accordance with the Crown Office Rules, 1906, rr. 35-39: 2 Russ. Cri. 923. Informations are tried before a petty jury in the K. B. D. or assizes on the civil side; prosecutor or defendant may have a special jury. The A.-G. of the Duchy of Lancaster may not file an ex-officio information. This process is the more appropriate mode of prosecuting such misdemeanours as peculiarly tend to disturb or endanger the government or to affront the sovereign in the discharge of the royal functions, delay being thereby avoided in the prosecution of such offences (see 4 Bl. Comm. ch. 23, s. 3)': 7 Encyc. Laws E. 201, 203. Information not ex-officio, it appears, ib., is appropriate on the relation of a private subject' for misdemeanours which on account of their magnitude or pernicious example, deserve the most public animadversion (Bl.). This power is in modern times used very sparingly-usually only in cases of libels on private individuals when attended with circumstances of aggravation, and illegal acts committed by magistrates or inferior public officers,

from corrupt or vindictive motives and not merely from ignorance or mistake' (208).

The origin of the limitation of this procedure seems to be that 'great inconvenience having been felt from compelling persons in low circumstances to shew cause against informations in the King's Bench, and after conviction to travel to Westminster from perhaps a very remote part of the country, and consequently at great expense and loss of time, to receive judgment, the court came to a resolution not to grant any informations against such persons, however fit the subject might be in other respects for such mode of prosecution': Chitty, 2 Prac. of the Law, P. 4, c. 5, p. 364, 1834, who adds: The jurisdiction to grant leave to file a criminal information in the Crown Office is one of the highest and perhaps most delicate and discreet branches of jurisdiction, somewhat in the nature of the ancient Court of Honour; and accordingly a criminal information is granted or refused not according to any strict legal rule, but depending on the question whether the party applying has in all respects acted as a gentleman, and therefore deserves the protection of the court, or whether the other party has acted malignantly and without provocation.'

Indictment a record] Per Holt C.J., in L. Preston, at 659, where the authority of what is alleged as a statute, 46 E. 3, 1372, is properly denied, though it is clearly accepted as such in Coke's preface to 3 R. at vi. Exactly the same point was taken in A. Sidney, 1683, at 836 and 900, and simply overruled. The document is proved at 1 Stat. of the Realm, 394, to be merely a petition. Cf. Index, Records.

Indictment-statutes] By 19-20 V. 54, 1 (as amended), it is ‘lawful for the foreman of every grand jury empanelled in England and Wales, and he is hereby authorised and required to administer an oath to all persons whomsoever who shall appear before such grand jury to give evidence in support of any bill of indictment, and all such persons attending before any grand jury to give evidence may be sworn and examined upon oath by such grand jury touching the matters in question.' By s. 3, foreman' includes any member of such grand jury who may for the time being act on behalf of such foreman in the examination of witnesses.

6

The Vexatious Indictments A. 1859, 22-3 V. 17] By s. 1, No Bill of indictment for . perjury, subornation of perjury [rpd. as regards these two offences in England by Perjury A. 1911, but re-enacted s. 11], conspiracy, obtaining money or other property by false pretences, keeping a gambling-house, keeping a disorderly house, and any indecent assault, shall be presented to or found by any grand jury, unless the prosecutor or other person presenting such indictment has been bound by recognisance to prosecute or give evidence against the person accused of such offence, or unless the person accused has been committed to or detained in custody, or has been bound by recognisance to appear to answer to an indictment to be preferred against him for such offence, or unless such indictment, if charged to have been committed in England or Ireland, be preferred by the direction or with the consent in writing' of a judge of one of the superior courts of law, or of the attorney- or solicitor-general, or (in the case of an indictment for perjury) by the direction of any court, judge, or public Functionary, authorised by 14-5 V. 100 [i.e. s. 19 rpd. in England: see above] so to direct': extended by 32-3 V. 62, 18 (fraudulent

Vexatious Indictments Act.

239

debtors in England); 35-6 V. 57, 18 (in Ireland); 44-5 V. 60, 6 (libel); 48-9 V. 69, 17 (sexual offences); 50-1 V. 28, 13 (merchandise marks); 6 E. 7, 34, 2 (2) (corruption); 8 E. 7, 45, 4 (1) (incest); 8 E. 7, 67, 35 (offences against children); 1-2 G. 5, 6, 11 (perjury); 4-5 G. 5, 59, 164 (3) (bankruptcy misdemeanours); 5-6 G. 5, 34, 1 (4) (war felonies).

S. 2. Where any charge or complaint shall be made before any one or more of her Majesty's justices of the peace that any person has committed any of the offences aforesaid 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, it shall be lawful for the said justice and he is hereby required to take the recognisance of such prosecutor to prosecute the said charge or complaint, and to transmit such recognisance, 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. 22-3 V. 17 is amended by the Criminal Law Amendment A. 1867, 30-1 V. 35.

S. 1. The said provisions of the said first section of the said Act shall not extend or be applicable to prevent the presentment to or finding by a grand jury of any bill of indictment containing a count or counts for any of the offences mentioned in the said Act, if such count or counts be such as may be lawfully joined with the rest of such bill of indictment, and if the same count or counts be founded (in the opinion of the court in or before which the same bill of indictment be preferred) upon the facts or evidence disclosed in any examinations or depositions taken before a justice of the peace, in the presence of the person accused or proposed to be accused by such bill of indictment, and transmitted or delivered to such court in due course of law; and nothing in the said Act shall extend or be applicable to prevent the presentment to or finding by a grand jury of any bill of indictment, if such bill be presented to the grand jury with the consent of the court in or before which the same may be preferred.

S. 4. All the provisions of the said Act 11 & 12 V. c. 42, relating to the summoning and enforcing the attendance and committal of witnesses, and binding them by recognisance and committal in default, and for giving the accused person copies of the examinations, and giving jurisdiction to certain persons to act alone, shall be read, and shall have operation as part of this Act.

S. 6. [Recital of 11-12 V. 42, 17]. Whenever it shall be made to appear to the satisfaction of any justice of the peace that any person dangerously ill, and in the opinion of some registered medical practitioner not likely to recover from such illness, is able and willing to give material information relating to any indictable offence, or relating to any person accused of any such offence, and it shall not be practicable for any justice or justices of the peace to take an examination or deposition, in accordance with the provisions of the said Act, of the person so being ill, it shall be lawful for the said justice to take in writing the statement on oath or affirmation of such person so being ill, and such justice shall thereupon subscribe the same, and shall add thereto by way of caption a statement of his reason for taking the same, and of the day and place when and where the same was taken,