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And speeches

of members of Parliament are

privileged.

How far the

publication of proceedings in

not acceded to, and the plaintiff brought an action against the defendant, in respect of the written paper as a libel, and in respect of the viva voce evidence as slander. The judge at the trial ruled that the action would not lie if the verbal and written statements complained of were made by the defendant, being a military officer, in the course of a military enquiry in relation to the conduct of the plaintiff, he being also a military officer, and with reference to the subject of the enquiry, although the defendant had acted mala fide, and with actual malice, and without any reasonable and probable cause, and with a knowledge that the statement made and handed in by him as aforesaid was false. A bill of exceptions having been tendered: Held, that this ruling as to the law was correct. Held, also, that the evidence of the defendant was but a parcel of the minutes of the proceedings of the Court, which, when reported and delivered to the commander-in-chief, was received. and held by him on behalf of the sovereign, and as such was inadmissible in evidence. (2)

The members of the two houses of Parliament, by reason of their privilege, are not answerable at law for any personal reflections on individuals contained in speeches in their respective houses; for policy requires that those who are by the constitution appointed to provide for the safety and welfare of the public, should, in the execution of their high functions, be wholly uninfluenced by private considerations. (a)

Thus the actual proceedings in courts of justice and in Parliament are exempted from being deemed libellous; it becomes courts of jus- important to inquire in the next place how far the same privilege will be extended to communications of those proceedings to the public, made with impartiality and correctness.

tice is allow

able.

In Wason v. Walter, 4 L. R. Q. B. 73, 38 L. J. Q. B. 34, Cockburn, C. J., in delivering the judgment of the Court said, that faithful and fair reports of the proceedings of courts of justice, though the character of individuals may incidentally suffer, are privileged, and that for the publication of such reports the publishers are neither criminally nor civilly responsible. (b) But a publication of the proceedings in a court of justice will not be protected unless it be a true and honest statement of those proceedings. (c) And it has been said that it must not be taken for granted that the publication of every matter which passes in a court of justice, however truly represented, is, under all circumstances and with whatever motive published, justifiable; and that such doctrine must be taken with grains of allowance. (d) And Lord Ellen

(z) Dawkins v. Lord Rokeby, 42 L. J. Q. B. 63, Ex. Ch. et per Kelly, C. B., no action lies against parties or witnesses for anything said or done, although falsely and maliciously, and without any reasonable or probable cause, in the ordinary course of any proceedings in a court of justice. Affirmed in H. L. 45, L. J. Q. B. 8.

(a) Holt on Libel, 190. 1 Starkie on Libel, 239. Rex v. Lord Abingdon, 1 Esp. Rep. 226. By 4 Hen. 8, c. 3, members of Parliament are protected from all charges against them for any thing said in either House; and this is

further declared in the Bill of Rights, 1 Will. & M. st. 2, c. 2.

(b) See also Curry v. Walter, 1 Bos. & Pull, 523. A defence that the matter complained of is so privileged, can be given in evidence under not guilty.

(c) Waterfield v. The Bishop of Chichester, 2 Mod. 118. Rex v. Wright, 8 T. Rep. 297, 298, per Lawrence, J. Stiles v. Nokes, 7 East, 493; Wason v. Walter, 38 L. J. Q. B. 34.

(d) By Lord Ellenborough, C. J., and Grose, J., in Stiles . Nokes, 7 East, 503.

borough, C. J., said, 'It often happens that circumstances necessary for the sake of public justice to be disclosed by a witness in a judicial inquiry are very distressing to the feelings of individuals on whom they reflect and if such circumstances were afterwards wantonly published, I should hesitate to say that such unnecessary publication was not libellous merely because the matter had been given in evidence in a court of justice.' (e) In a subsequent case, not relating directly to this point, but to the publication of proceedings in Parliament, Bayley, J., said, 'It has been argued that the proceedings of courts of justice are open to publication. Against that, as an unqualified proposition, I enter my protest. Suppose an indictment for blasphemy, or a trial where indecent evidence was necessarily introduced; would every one be at liberty to poison the minds of the public, by circulating that which for the purposes of justice the Court is bound to hear? I should think not: and it is not true, therefore, that in all instances the proceedings of a court of justice may be published.' (f) This doctrine was recognized and acted upon in a later case. The defendant's husband had been convicted of publishing a blasphemous libel, after having in his defence at the trial used arguments and statements of a blasphemous and indecent description. His wife published the trial; and, upon showing cause against a rule for a criminal information, it was urged that she had a right to publish what actually took place in a court of justice but the Court were clear she had not, if that statement contained anything seditious, blasphemous, or indecent and the rule was made absolute. (g) And where it is allowable to publish what passes in a court of justice it is not essential that every word of the evidence, of the speeches, and of what was said by the judge, should be inserted; if the report is substantially a fair and correct report of what took place in a court of justice, it is privileged. (h) It may sometimes not be justifiable to publish everything a counsel says in the course of his speech, (i) but no action will lie against a barrister for words spoken by him in a cause, which are pertinent to the matter in issue. () And an attorney acting as an advocate has the same privilege. (k)

The party making the publication will not be justified, unless he confines himself to what actually passed in court. (1) Before the case of Wason v. Walter, noticed post, p. 185, was decided, it was an established principle, upon which the privilege of publishing a report of any judicial proceedings was admitted to rest, that such report must be strictly confined to the actual proceedings in court, and must contain no defamatory observations or comments from any quarter whatever, in addition to what formed strictly and properly the legal

(e) Ibid. And see Rex v. Salisbury, 1 Lord Raym. 341, that it is indictable to publish a scandalous petition to the House of Lords, or a scandalous affidavit made in a court of justice.

(f) Rex v. Creevey, 1 M. & S. 281.

(g) Rex v. Carlisle, 3 B. & A. 167; Steele v. Brannan, 41 L. J. M. C. 85, where a report of proceedings in a court of justice was held not to be privileged, as the same was offensive to public decency.

(h) Andrews v. Chapman, 3 C. & K. 286, Lord Campbell, C. J. See Smith v.

Scott, 2 C. & K. 580. Hoare v. Silverlock, 9 C. B. 20. See Lewis v. Walter, 4 B. & A. 645.

(i) Per Bayley, J., Flint v. Pike, 4 B. & C. 473. 6 D. & R. 528. Per Holroyd, J., ibid. and per Tindal, C. J. Roberts v. Brown, 10 Bing. 519; Saunders v. Mills, 6 Bing. 213. S. C. 3 M. & P. 520; R. v. Creevey, 1 M. & Sel. 281.

(j) Hodgson v. Scarlett, 1 B. & Ald.

232.

(k) Mackay v. Ford, 5 H. & N. 792.
(1) Delegal v. Highley, 3 B. N. C.

950.

Proceedings

of the peace.

Ex parte examinations before a magistrate.

proceedings. But perhaps it will now be considered that a fair comment upon any matter of public interest is privileged. (m)

Proceedings before magistrates, under the 11 & 12 Vict. c. 43, before justices with respect to summary convictions and orders, in which, after both parties are heard, a final judgment is given, are strictly of a judicial nature, and the trial and the judgment may lawfully be made the subject of a printed report, if that report be impartial and correct; (n) and the like privilege extends to the publication of proceedings taking place publicly before a magistrate on the preliminary investigation of a charge of an indictable offence, terminating in the discharge of the party charged, although there were several hearings, and separate publications as to each hearing; (0) but it has not yet been decided that the publication of such preliminary inquiries is lawful where they end in the case being sent for trial. (p) The publication of preliminary examinations before a magistrate, taken ex parte, have been held not to come within the principle by which the fair reports of proceedings in courts of justice are privileged. It has been said that such publications have a tendency to cause great mischief by perverting the public mind, and disturbing the course of justice; and, if they contain libellous matter, will be considered as criminal. (q) And the Court of King's Bench has granted a criminal information for publishing in a newspaper a statement of the evidence given before a coroner's jury, accompanied with comments; although the statement was correct, and the party had no malicious motive in the publication. (r) But in Wason v. Walter, 38 L. J. Q. B. 34, decided since the above cases, Cockburn, C. J., whilst delivering the judgment of the Court, is reported to have said, 'Even in quite recent days, judges, in holding the publication of the proceedings of courts of justice lawful, have thought it necessary to distinguish what are called ex parte proceedings as a probable exception from the operation of the rule. Yet ex parte proceedings before magistrates, and even before this Court, as, for instance, on application for criminal informations, are published every day; but such a thing as an action or indictment, founded on a report of such an ex parte proceeding, is unheard of, and if any such action or indictment should be brought, it would probably be held that the true criterion of the privilege is not whether the report was, or was not, ex parte, but whether it was a fair and honest report of what had taken place, published simply with a view to the information of the public, and innocent of all intention to do injury to the reputation of the party affected.'

Examination of

a prisoner by registrar in bankruptcy.

The examination of a prisoner in gaol by the registrar in bankruptcy, under the 101st section of the Bankruptcy Act, 1861, is a public judicial proceeding, and therefore a fair and correct report,

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fendant justify the publication of a matter which was not brought before the magistrate in his judicial character, or in the regular discharge of his magisterial functions. M'Gregor v. Thwaites and another, 3 B. & C. 24; 4 D. & R. 695.

(7) Rex v. Fleet, 1 Barn. & Ald. 379. See East v. Chapman, M. & M. 46. 2 C. & P. 570; Charlton v. Watton, 6 C. & P. 835; R. v. Gray, 10 Cox, C. C 184,

without comment, of the examination, is privileged, even though it may contain statements which injuriously affect the character of a third person. (8)

public meet

ings.

In general a fair report in a newspaper of what takes place at a Proceedings of public meeting, if it contain matter defamatory of an individual, is not privileged. Therefore a fair report of what took place at a public meeting of the West Hartlepool Commissioners, acting under the powers of an Act of Parliament, and which contained injurious expressions concerning an individual, is not privileged. (t)

If a report made by a medical officer of health to a vestry Medical report board, in pursuance of the Metropolitan Local Management Act to a vestry. (18 & 19 Vict. c. 120) contains libellous matter, a newspaper proprietor is not justified in publishing it. (u)

The publication of a faithful report of a debate in either house of Parliament is privileged, so that the publisher is not responsible for defamatory statements made in the course of the debate so reported and published, and the publication of articles fairly commenting upon the debate so reported and published is equally privileged. (v) The printing and delivering a petition to members of a committee of the House of Commons, being according to the order of proceedings of Parliament and their committees, has been held to be justifiable. (w)

How far the publication of proceedings in Parliament is allowable.

It was decided upon demurrer in a case, which underwent great Stockdale v. consideration, that it is no defence in law to an action for publish- Hansard. ing a libel, that the defamatory matter is part of a document which was, by order of the House of Commons, laid before the House, and thereupon became part of the proceedings of the House, and which was afterwards, by orders of the House, printed

(s) Ryalls v. Leader, 35 L. J. Ex. 185; L. R. Ex. 296.

(t) Davison v. Duncan, 7 E. & B. 229. (u) Popham v. Pickburn, 7 H. & N.

891.

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(v) Wason v. Walter, 38 L. J. Q. B. 34, et per cur., our judgment will in no way interfere with the decisions that the publication of a single speech for the purpose or with the effect of injuring an individual will be unlawful, as was held in the cases of R. v. Lord Abingdon, 1 Esp. 225, and R. v. Creevey, 1 M. & S. 273. At the same time it may be as well to observe that we are disposed to agree with what was said in Davidson v. Duncan, 7 E. & B. 232, as to such a speech being privileged if bona fide published by a member for the information of his constituents. But whatever would deprive a report of the proceedings in a court of justice of immunity will equally apply to a report of proceedings in parliament.

We pass

on to the second branch of this rule, which has reference to alleged misdirec tion in respect of the second count of the declaration, which is founded on the article in the Times, commenting on the debate in the House of Lords; and the conduct of the plaintiff in preferring the petition which gave rise to it. We are of opinion that the direction given to the ury was perfectly correct. The publi

cation of the debate having been justifi-
able, the jury were properly told that the
subject was, for the reasons we have
already adverted to, pre-eminently one of
public interest, and therefore one on
which public comment and observation
might properly be made; and that con-
sequently the occasion was privileged in
the absence of malice. As to the latter,
the jury were told that they must be
satisfied that the article was an honest
and fair comment on the facts; in other
words, that, in the first place, they must
be satisfied that the comments had been
made with an honest belief in their jus-
tice; but that this was not enough, inas-
much as such belief might originate in
the blindness of party zeal, or in personal
or political aversion, that a person taking
upon himself publicly to criticize and to
condemn the conduct or motives of
another must bring to the task, not only
an honest sense of justice, but also a rea-
sonable degree of judgment and modera-
tion, so that the result may be what a
jury shall deem under the circumstances
of the case a fair and legitimate criticism
on the conduct and motives of the party
who is the object of censure. See Hen-
wood v. Harrison, 41 L. J. C. P. 206.

See

(w) Lake v. King, 1 Saund. 131.
the judgment of Lord Ellenborough, C.
J., in Rex v. Creevey, 1 M. & S. 278.

Proceedings, criminal or civil, against persons for publication

of papers printed by order of

Parliament, to be stayed, upon delivery of a certificate

and affidavit to the effect that such publication is by order

of either

House of Par

liament.

and published by the defendant; and that the House of Commons had theretofore resolved, 'that the power of publishing such of its reports, votes, and proceedings, as it shall deem necessary or conducive to the public interests, is an essential incident to the constitutional functions of Parliament, more especially to the Commons' House of Parliament, as the representative portion of it.' (x)

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In consequence of this decision the 3 & 4 Vict. c. 9, was passed, which by Sec. 1, reciting, 'whereas it is essential to the due and effectual exercise and discharge of the functions and duties of Parliament, and to the promotion of wise legislation, that no obstructions or impediments should exist to the publication of such of the reports, papers, votes, or proceedings of either House of Parliament as such House of Parliament may deem fit or necessary to be published: And whereas obstructions or impediments to such publication have arisen, and hereafter may arise, by means of civil or criminal proceedings being taken against persons employed by or acting under the authority of the Houses of Parliament, or one of them, in the publication of such reports, papers, votes, or proceedings; by reason and for remedy whereof it is expedient that more speedy protection should be afforded to all persons acting under the authority aforesaid, and that all such civil or criminal proceedings should be summarily put an end to and determined. in manner hereinafter mentioned: enacts, that it shall and may be lawful for any person or persons who now is or are, or hereafter shall be, a defendant or defendants in any civil or criminal proceeding commenced or prosecuted in any manner soever, for or on account or in respect of the publication of any such report, paper, votes, or proceedings by such person or persons, or by his, her, or their servant or servants, by or under the authority of either House of Parliament, to bring before the court in which such proceeding shall have been or shall be so commenced or prosecuted, or before any judge of the same (if one of the superior courts of Westminster), first giving twenty-four hours' notice of his intention so to do to the prosecutor or plaintiff in such proceeding, a certificate under the hand of the Lord High Chancellor of Great Britain, or the Lord Keeper of the Great Seal, or of the Speaker of the House of Lords, for the time being, or of the Clerk of the Parliaments, or of the Speaker of the House of Commons, or of the Clerk of the same House, stating that the report, paper, votes, or proceedings, as the case may be, in respect whereof such civil or criminal proceeding shall have been commenced or prosecuted, was published by such person or persons, or by his, her, or their servant or servants, by order or under the authority of the House of Lords or of the House of Commons, as the case may be, together with an affidavit verifying such certificate; and such court or judge shall thereupon immediately stay such civil or criminal proceeding, and the same, and every writ or process issued therein, shall be and shall be deemed

(x) Stockdale v. Hansard, 9 A. & E. 1, 2 P. & D. 1. See Wason v. Walter, supra, per Cockburn, C. J.; Henwood v. Harrison, 41 L. J. C. P. 206, per Willes, J., By 39 Geo. 3, c. 79, (An Act for the more effectual suppression of societies established for seditious and treasonable

purposes; and for better preventing treasonable and seditious practices) s. 28, nothing in this Act contained shall extend or be construed to extend to any papers printed by the authority and for the use of either House of Parliament.' See 32 & 33 Vict. c. 24.

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