STUBBS v. THE DIRECTOR 1890. vate prosecu cutor-Ac quittal of defendantsLiability of ably have intended to discourage. If the defendant has been acquitted by reason that the prosecution was vexatious in its inception, there seems no adequate reason why the original oF PUBLIC prosecutor should be relieved from the burden of paying costs PROSECUTIONS. simply because, in the interests of justice, the Director of Public Prosecutions has thought it right to intervene. If the prosecution was not vexatious in its inception, but has failed by reason Practiceof the difficulty of proving the case, or even by reason of the Costs-Priintervention of the Director of Public Prosecutions, those seem tion-Case unreasons, not why the Director of Public Prosecutions should pay dertaken by the costs, but why the defendant should not get his costs; and Public Proseunless it was shown that the prosecution was vexatious, that is, begun and continued without reasonable and probable cause, or frivolous, I imagine that the court, in the due exercise of their Public Prosediscretion, would decline to give the defendant the costs of the cutor-22 & 33 trial. It is not necessary in this case to consider the wider Vict. c. 17; 30 question whether an order under 30 & 31 Vict. c. 35, can in any 31 Vict. c. case be made on the Director of Public Prosecutions. 35, s. 2; 42 & It is 43 Vict. c. 22, enough to say that in this case, for the reasons given above, such an order could not be made, and therefore our judgment must be for the defendant. I should like to add for myself that of course we have not had before us the merits of the case, and are deciding simply on the point of law; but I find it very difficult to conceive what the circumstances could be which would justify such an order being made on the Director of Public Prosecutions. SMITH, J.-In this case the Recorder of London, at the termination of a case before him at the Central Criminal Court, in the first instance made an order that the prosecutor or other person by or at whose instance the indictment was preferred should pay the costs to the defendants, and at a subsequent session he altered that order by making an order on the Director of Public Prosecutions to pay the said costs. Now, Gostling in this case instituted a criminal prosecution against Stubbs and Irving for conspiracy, but the charge was dismissed by the alderman who heard it. Thereupon Gostling was bound over under the provisions of the Vexatious Indictments Act (22 & 23 Vict. c. 17) to prosecute at the Old Bailey, and entered into recognisances in that behalf. Having been so bound over, he preferred an indictment at the Central Criminal Court against Stubbs and Irving, and having so preferred that indictment, he then brought himself within 30 & 31 Vict. c. 35, s. 2, which enacts that at the termination of a criminal prosecution the judge who tries it may, if he thinks right, order that the prosecutor pay the costs of the defendant if the defendant is acquitted. In these circumstances the Director of Public Prosecutions intervened, and conducted the case at the trial, and at the trial failed. Thereupon the order was made first of all that the prosecutor or other person should pay the defendants' costs, and subsequently the Recorder altered that order by making it an order upon the Director of Public s. 7. STUBBS v. THE DIRECTOR 1890. Practice tion-Case un cutor-Ac cutor-22 & 23 35, s. 2; 42 43 Vict. c. 22, s. 7. Prosecutions. The question which has been argued before us is, whether or not the Director of Public Prosecutions can be OF PUBLIC ordered under these circumstances to pay the costs of the defenPROSECUTIONS. dants. Now, it is clear that he could not be ordered to pay by reason of 30 & 31 Vict. c. 35, s. 2, for the simple reason that he was not the person who in this case had preferred the indictment. But it was alleged that he could be made to pay by reason of Costs-Pri- 42 & 43 Vict. c. 22, s. 7, the last words of which enact that in rate prosecu- certain cases the Director of Public Prosecutions shall be liable dertaken by to costs in lieu of such person; that is, in lieu of the original Public Prose- prosecutor. That is a captivating argument until one looks quittal of de- carefully into the section to see what it provides. It is a section fendantsunder which in certain events the Director of Public Prosecutions Liability of may be put under certain responsibilities; but it seems to me Public Prose that he is only to be put under that responsibility from which Vict. c. 17; 30 the original prosecutor has been relieved. The section provides 31 Vict. c. as follows: "Nothing in this Act shall interfere with the right of any person to institute, undertake, or carry on any criminal proceeding." Where any criminal proceeding is instituted, undertaken, or carried on by the Director of Public Prosecutions, such director shall not be bound over to prosecute or conduct such proceedings, or required to give security for costs." The meaning of that is obvious, because the Director of Public Prosecutions is an officer of state, and it would not be necessary to bind him over or to make him give security for costs. "And it shall not be necessary to bind over any person to prosecute or conduct such proceedings;" that is, when the Director of Public Prosecutions intervenes. Then the section proceeds: "And if any person is so bound over" (as the original prosecutor, Gostling, was in this case), "or has given security for costs" (Gostling had not done so, because it was not a case in which he could be called upon to do so), "he shall, upon the Director of Public Prosecutions undertaking the case, be released from such obligation" (that is, the obligation which he entered into by reason of his recognisance to prosecute), "and the security (for costs) shall be deemed to have been cancelled." So far there is no liability as to the payment of costs placed upon the Director of Public Prosecutions, but the private prosecutor is released from two things, namely, from his obligation to prosecute and from his obligation as to security for costs if he has given any. The section then proceeds with these words: "and the Director of Public Prosecutions shall be liable to costs in lieu of such persons." Liable to what costs? In my opinion, what the original prosecutor is released from the Director of Public Prosecutions comes under obligation to. And what the original prosecutor here has been released from is his obligation to prosecute, which was undertaken by the Director of Public Prosecutions, and his obligation as to security for costs, if any had been given, and for those costs only does the Director of Public Prosecutions become liable. It seems to me that on this reading STUBBS v. THE DIRECTOR of the section the case is clear, and that this order, even if it could have been made in the court in which it was made, is not an order which should have been made. For these reasons I OF PUBLIC think that judgment must be for the defendant. Judgment for the defendant. Solicitors for the plaintiffs, C. O. Humphreys and Son. Solicitor for the defendant, The Solicitor to the Treasury. CROWN CASES RESERVED. Feb. 1 and 8, 1890. (Before Lord COLERIDGE, C.J., POLLOCK, B., HAWKINS, GRANTHAM, and CHARLES, JJ.) REG. v. MILES. (a) Indictment for unlawful wounding-Special plea of autrefois convict-Conviction for assault before court of summary jurisdiction Defendant discharged on recognisances for good behaviour-24 & 25 Vict. c. 100, ss. 42 and 45; 42 & 43 Vict. c. 49, s. 16. A person who has been convicted before a court of summary jurisdiction of an assault which in the opinion of such court was of so trifling a nature as to render it inexpedient to inflict any punishment, or other than a nominal punishment, and who has been discharged upon giving security to be of good behaviour, cannot afterwards be convicted upon an indictment, the charges in which are based upon the same assault. Semble, per Hawkins, J., that the giving of security to be of good behaviour was intended by sect. 16 of the Summary Jurisdiction Act, 1879, as a substitution for punishment, and that by giving such security a defendant is placed in precisely the same position as if punishment had been inflicted upon and suffered by him. Hartley v. Hindmarsh (14 L. T. Rep. Ñ. S. 795; L. Rep. 1 C. P. 553; 35 L. J. 255, M. C.) distinguished. a HIS was a case reserved for the opinion of this court by Sir Thomas Chambers, Q.C., Recorder of London, which stated as follows: At the session of the Central Criminal Court held on the 16th day of December, 1889, George James Miles was arraigned before (a) Reported by R. CUNNINGHAM GLEN, Esq., Barrister-at-Law. PROSECUTIONS. 1890. PracticeCosts-Private prosecution-Case undertaken by Public Prosecutor-Acquittal of de fendantsLiability of Public Prosecutor-22 & 23 Vict. c. 17; 30 & 31 Vict. c. 35, s. 2; 42 & 43 Vict. c. 22, s. 7. REG. v. MILES. 1890. Practice Plea of autrefois convict Indictment for unlawful wounding Previous con me on an indictment which charged him in the first count with unlawfully and maliciously wounding Charles Living; second count unlawfully inflicting grievous bodily harm on the said Charles Living; third count assaulting the said Charles Living, and thereby occasioning him actual bodily harm; fourth count a common assault on the said Charles Living; fifth count a common assault on Harry Anstey. The indictment was as follows: Central Criminal Court, to wit.-The jurors for our Lady the Queen upon their viction sumoath present that George James Miles, on the twenty-sixth day of October, in marily for the year of our Lord eighteen hundred and eighty-nine, at the parish of West Ham, assault De. and within the jurisdiction of the Central Criminal Court, one Charles Living unlawfendant dis- fully and maliciously did wound, against the form of the statute in such case made and charged on re- provided, and against the peace of our Lady the Queen, her crown and dignity. cognisances for good behavioor -24 & 25 Vict. c. 100, ss. 42 & 45; 42 & 43 Vict. c. 49, s. 16. Second count: And the jurors aforesaid upon their oath aforesaid do further present that the said George James Miles, on the said twenty-sixth day of October in the year aforesaid, at the parish aforesaid, and within the jurisdiction of the said court, unlawfully and maliciously in and upon the said Charles Living did inflict grievous bodily harm, against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Third count: And the jurors aforesaid upon their oath aforesaid do further present that the said George James Miles, on the said twenty-sixth day of October in the year aforesaid, at the parish aforesaid, and within the jurisdiction of the said court, in and upon the said Charles Living unlawfully did make an assault, and him the said Charles Living did then unlawfully beat, wound, and ill-treat, thereby then occasioning to the said Charles Living actual bodily harm and other wrongs to the said Charles Living then did to the great damage of the said Charles Living, against the form of the statuto in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Fourth count: And the jurors aforesaid upon their oath aforesaid do further present that the said George James Miles, on the day and in the year aforesaid, at the said parish, and within the jurisdiction of the said court, in and upon the said Charles Living unlaw. fully did make an assault, and him the said Charles Living unlawfully did beat, wound, and ill-treat, and to the said Charles Living other grievous wrongs then and there unlawfully did, to the great damage of the said Charles Living, to the evil example of all others in the like case offending, and against the peace of our said Lady the Queen, her crown and dignity. Fifth count: And the jurors aforesaid upon their oath aforesaid do further present that the said George James Miles, on the said twenty-sixth day of October in the said year, and at the said parish and in the said jurisdiction of the said court, in and upon Harry Anstey unlawfully did make an assault, and him the said Harry Anstey unlawfully did beat, wound, and ill-treat and other grievous wrongs to the said Harry Anstey, then and there unlawfully did to the great damage of the said Harry Anstey, to the evil example of all others in the like case offending, and against the peace of our said Lady the Queen, her crown and dignity. The prisoner handed in a special plea in bar of his prosecution so far as the first four counts of the indictment were concerned, and pleaded not guilty as to those counts and the fifth count, and a special reply was put in by the prosecution. The following is a copy of the special plea :- REG. v. MILES. 1890. viction sum And the said George James Miles in his own proper person cometh into court here, and, having heard the said indictment read, saith that our said Lady the Queen ought not further to prosecute the said indictment against him the said George James Miles in respect of the offences in the first four counts of the said indictment mentioned, because he saith that heretofore, to wit on the twenty-eighth day of October in the Practiceyear of our Lord one thousand eight hundred and eighty-nine, in the borough of West Plea of autreHam, in the county of Essex, he, the said George James Miles, was, upon the com- fois convictplaint of the said Charles Living, duly convicted before the Court of Summary Juris- Indictment for diction sitting in and for the borough aforesaid, for that he, the said George unlawful James Miles, on the twenty-sixth day of October one thousand eight hundred and wounding-. eighty-nine, did unlawfully assault and beat the said Charles Living, and the said Previous concourt being of opinion that the said offence was of so trifling a nature that it was inexpedient to inflict any other than a nominal punishment, the said George James marily for asMiles, having given security to the satisfaction of the said court to be of good sault-Defenbehaviour, was discharged as by the record of the said conviction more fully and at dant dislarge appears, which said judgment and conviction still remains in force and effect, charged on re and not in the least reversed or made void. And the said George James Miles further saith that the assault and battery of the said Charles Living, of which he the said George James Miles was so convicted, as aforesaid and the wounding assault and battery in the first four counts of the said indictment mentioned, are one and the same assault and battery and not other and different. And this he, the said George James Miles, is ready to verify. Wherefore he prays judgment if our said Lady the Queen ought further to prosecute the said indictment against him, the said George James Miles, in respect of the said offences in the first four counts of the said indictment mentioned. And that the said George James Miles may be dismissed and discharged from the same. And as to the offences in the said indictment mentioned the said George James Miles saith that he is not guilty thereof, and therefore he puts himself upon the country. The reply was as follows: And hereupon Edward James Read, the clerk of the peace for the jurisdiction of the Central Criminal Court, who prosecutes for our said Lady the Queen in this behalf, says, that by reason of anything in the said plea of the said George James Miles above pleaded in bar alleged our said Lady the Queen ought not further to be precluded from prosecuting the said indictment against the said George James Miles, because he says that the said George James Miles was not on the twenty-eighth day of October one thousand eight hundred and eighty-nine before the Court of Summary Jurisdiction in and for the borough of West Ham upon the complaint of the said Charles Living or otherwise, or at all legally convicted of having on the twenty-sixth day of October unlawfully assaulted and beaten the said Charles Living that the said record of the said Court of Summary Jurisdiction recited in full in the said plea of the said George James Miles discloses no such conviction, order, or other determination of the said Court of Summary Jurisdiction as can in law operate as a bar to further prosecution by our said Lady the Queen under the said indictment that the said record of the said Court of Summary Jurisdiction recited in full in the said plea of the said George James Miles disclosed that the said Court of Summary Jurisdic tion had proceeded under the provisions of section 16, sub-section 2, of the Summary Jurisdiction Act, 1879, that neither the said plea so pleaded by the said George James Miles as aforesaid, nor the said record of the said Court of Summary Jurisdiction hereinbefore mentioned, shows that any proceeding had been taken in respect of the said proceeding before the said Court of Summary Jurisdiction on the said twenty-eighth day of October under the provisions of the Offences against the Person Act, 1861, and the provisions of the forty-fifth section thereof, that the said George James Miles has not obtained any certificate, such as is mentioned in the said last mentioned section; that the said Court of Summary Jurisdiction inflicted no fine upon the said George James Miles, nor was the said George James Miles adjudged to be imprisoned so as to render any order so made by the said Court of Summary Jurisdiction on the said twenty-eighth day of October against the said George James Miles effectual as a bar to the further prosecution of the said indictment under or by virtue of the provisions of the said forty-fifth section of the said statute, and this the said Edward James Read is ready to verify. Wherefore he prays judgment and that the said George James Miles may be convicted of the premises in the said indictment above specified." The evidence offered by the defendant in support of his plea cognisances for good behaviour 24 & 25 Vict. c. 100, ss. 42 & 45; 42 & 43 Vict.c.49, s.16. |