REG. V. THE The prosecutors of corporations by way of indictment would be deprived of recouping themselves any of the costs incurred by them in putting the law in motion, unless it were for the power AND NORTH- on the imposition of any fine on a defendant corporation given LONDON WESTERN RAILWAY 1888. Practice Costs of indictment of a corporation removed into Division Basis of fine. to the Coroner and Attorney of the Queen's Bench by the writ of Privy Seal to make out a certificate that the prosecutors had incurred costs in enforcing the law, on which certificate two justices of the Queen's Bench may issue a warrant allowing the prosecutors one-third of the fine imposed. If the third of the fine be insufficient, the prosecutors can only memorialise the Treasury to remit a further portion of the fine. This writ of Privy Seal is a power of attorney granted by the Queen's Bench special grace of the Crown at the beginning of each reign to the justices of the Queen's Bench, the Attorney-General, and the Crown Coroner and Attorney for the time being, and is granted for the encouragement of persons who take the trouble to play the Crown's part in prosecuting and convicting offenders. The material parts of the writ for the present reign run as follows: Victoria by the grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, to our right trusty and well-beloved councillor Thomas Baron Denman, Chief Justice of our Court of Queen's Bench, our trusty and wellbeloved Sir Joseph Littledale, Knight, Sir John Patterson, Knight, Sir John Taylor Coleridge, Knight, and Sir John Williams, Knight, justices of our said court now being, and to the Chief Justice and other justices of the said court for the time being, and to our Attorney-General and the coroner and attorney of the said court now and for the time being, and to all other our officers, ministers, and subjects, whom these presents shall or may concern, greeting. Forasmuch as divers fines have of late years been set and imposed in our Court of Queen's Bench on several persons for divers crimes and misdemeanours by them committed, whereof they were lawfully convicted, which said fines (as we have been informed) have been paid into the hands of our coroner and attorney of our said court; and whereas the like fines may happen for the future to be set in the said court upon offenders against the law and statutes of this our realm, which are likewise from time to time to be paid into the hands of the coroner and attorney of our said Court of Queen's Bench for the time being; and whereas it is just and reasonable that such of our good subjects as have already prosecuted, or shall for the future prosecute any offenders against the law and statutes of this our realm, should meet with due encouragement for their zeal in our service, and for their care, pains, expense, and trouble in prosecuting and convicting such offenders. And we being willing and minded that the prosecutors of such offenders as aforesaid should receive due encouragement for their zeal and service in such prosecutions. We do therefore give full power and authority to our Chief Justice and other the justices of our said Court of Queen's Bench now and for the time being, that in cases where any indictment, presentment, action of debt, information, fieri facias, or other suits have been or shall be had or prosecuted in our said court for us or on our behalf, and any money that hath become due and been paid or shall be due and payable unto us by any person or persons upon any fine, recovery, or forfeiture, upon or by reason of any such indictment, presentment, action of debt, information, fieri facias, recognisance, or by any other ways or means in that court, and that it shall appear to you our justices of the said court by the certificate of our Attorney-General or our coroner and attorney of that our court for the time being, that any person hath bestowed any costs, charges, or travel, for us and on our behalf in prosecuting any such cause, you or any two of you shall and may give warrant and allowance to pay unto the said person or persons out of such money as hath been or shall be paid into that court to our use so much money in lieu and recompence of his and their labour and charges as you shall think fit. convenient, and reasonable to be allowed to him or to them, so that the sum so allowed do not exceed one full third part of the moneys so recovered and received to our use, and such warrant signed under the hands of any two of our justices of the said court shall be a sufficient discharge against us, our heirs and successors, to such person as shall so receive the same, as also to our said coroner and attorney for paying thereof by virtue of such allowance so to be made for or upon the said The indictment against the railway company was tried at the Shrewsbury Winter Assizes, 1888, before Lord Coleridge, C.J., who directed a verdict of guilty against the company. It was proved at the trial that the state of the highway in question was dangerous, and that several accidents had happened, both on account of the foundrous condition of the road, and from horses taking fright at the water. The railway company subsequently moved to have judgment entered for themselves, which motion was refused. The prosecutors then signed judgment, and obtained a rule nisi, calling upon the railway company to show cause why they should not be sentenced and fined. This rule was obtained by the prosecution in accordance with the practice of the Crown Office, instead of their giving to the defendants the four days' notice to appear to receive sentence under rule 176 of the Crown Office Rules, 1886, because the defendants, being a corporation, were unable so to appear. The defendants, then submitted themselves for judgment, when it was shown by the affidavits read, that though the defendants had done the necessary repairs, yet they had not begun to execute them until after the motion to enter judgment for themselves had failed. The costs of the prosecution incurred in prosecuting the defendants were assessed at 3501. A. T. Lawrence (Bosanquet, Q.C. with him), for the defendants, showed cause. The railway company now submit themselves to judgment. The prosecution seek to inflict upon the company a heavy fine; but a nominal one is sufficient to meet this case. There was a bona fide trial of right, the railway company denied their liability to effect the repairs necessary to abate the nuisance, as it had not been caused by any acts of their own, but by the mining operations of others which let down the canal feeder and highway. As soon as the question of right was settled the defendant company here set to work and executed all necessary repairs. The amount of the fine to be imposed is in no way to be commensurate with the amount of the costs incurred by the prosecution, so that the latter shall be, under the practice of the Crown Office, able to get their costs fully recouped. The invariable practice of the courts is against such a proceeding; REG. v. THE LONDON AND NORTHWESTERN RAILWAY COMPANY. 1888. PracticeCosts of indictment of a corporation removed into Queen's Bench DivisionBasis of fine. REG V. the fine is to be commensurate with the offence, and not the costs of the prosecution. [WILLS, J.-The master tells us, and it certainly accords with my own recollection, that it is never AND NORTH- done.] THE LONDON WESTERN 1888. Practice Costs of a corporation Jelf, Q.C. (Spearman with him) for the prosecution. If only a nominal fine is inflicted gross injustice would be done. This highway was left in a most dangerous condition for over eighteen months; accidents were occurring on it, which were brought to the knowledge of the defendant company, and they took no steps to abate the nuisance; and they only commenced to execute any indictment of repairs at all after they were unsuccessful in their motion to have removed into judgment entered for themselves but a short while ago. The Queen's Bench prosecution have incurred costs in this matter to the extent of Division 3501. [WILLS, J.-Did you ever know of an application to send Basis of fine. a man to gaol for two months instead of one because the prosecution had been an expensive one?] No, but in the recent case of Reg. v. Manchester, Sheffield, and Lincolnshire Railway (Times, December 22, 1887), I think that the fine of 100l. was inflicted upon the company because of an affidavit to the effect that 1001. had been incurred as costs of the prosecution. [WILLS, J.—If the court gave judgment upon that ground, it was an innovation.] In Corner's Crown Practice, it is laid down as follows: "Upon conviction the prosecutor is not entitled to recover cost of the defendant, nor the defendant upon acquittal, of the prosecutor. But if the court, on passing sentence, impose a fine on the defendant the prosecutor is entitled under a writ of Privy Seal to one-third part of the fine towards his costs, if they amount to so much, and if not sufficient, he may memorialise the Lords of the Treasury to be allowed a further part of such fine towards the costs." This power given to the prosecution to get the whole of their costs, if the fine be big enough, shows that the costs incurred is the basis of the fine. The object of giving the prosecution its costs is to protect the public by offering an inducement to prosecute in proper cases. If prosecutors are to be saddled with the costs of vindicating the rights of the public against wealthy and powerful bodies, prosecutions will become very rare. If the defendants had been individuals, on removing the indictment into the High Court, they would have been bound to enter into recognisances to pay the costs of the prosecution if the case were decided against them. [WILLS, J.-On the other hand, if they had been individuals they could have been tried at the assizes, and would not have been under any liability to pay costs by way of recognisances.] A railway company (the Manchester and Leeds Railway Company) was convicted on an indictment for a nuisance, and fined 5000l., but the court, thinking that matters should be arranged for the public benefit, ordered all process to levy the fine should be respited for some time, and that the nuisance complained of should be abated. The works having in the meantime been pulled down and altered to the satisfaction of the prosecutors, motion was afterwards made, and a rule nisi granted perma nently, to respite the process for levying the fine, and to discharge the indictment, which rule was afterwards made absolute upon terms as to costs: (Reg. v. Scott and others, 3 Q. B. 543; Corner's Crown Practice, 155). [WILLS, J.There the court were going to refuse to levy the fine they had already inflicted, and so, of course, were entitled to put the defendants on terms as to the costs of the prosecutors, who by the infliction of the fine had become entitled to one-third of the sum imposed.] On that principle in the present case, there ought to be a larger amount if the costs are not paid. [WILLS, J.-The cases show this, that if the offence is of such a degree of seriousness as to require a substantial fine to be imposed, and it is paid, the prosecutor may resort to that fund for his costs.] The learned counsel then read affidavits disclosing facts which, he contended, would warrant the infliction of a fine of considerable amount. WILLS, J.—The law does not at present enable courts to make unsuccessful defendants in criminal cases, except in certain specified cases, pay the costs; and that which is not to be done directly is not to be done indirectly, and therefore, according to the uniform practice of the Crown Office which we have ascertained from unexceptionable testimony, namely, the officers of that department, which is certainly entirely in accordance with my own personal recollection now over a great many years, we take no heed of the costs in apportioning the fine in respect of the offence of which the defendants have been convicted. GRANTHAM, J.-I am of the same opinion. [Their Lordships then went into the merits of the case, and after coming to the conclusion that the defendant company had been guilty of contumacious conduct and great delay in abating the nuisance, inflicted on them a fine of 3001.] Rule absolute. Solicitors for the prosecution, Prior, Church, and Adams, for O. W. Harris, Dawley Green. Solicitor for the defendant, C. H. Mason. QUEEN'S BENCH DIVISION. (Before CAVE and SMITH, JJ.) BETTS v. ARMSTEAD. (a) Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), s. 6— Bread Adulteration Guilty knowledge, whether necessary under sect. 6. Proof that the vendor had no knowledge that the article which he sold was adulterated is no defence to a prosecution under the 6th section of the Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63). CASE NASE stated by justices under 20 & 21 Vict. c. 43, and 42 & 43 Vict. c. 49. The appellant, who was the inspector of nuisances for the town of Nottingham, preferred an information against the respondent under sect. 6 of the Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), for having unlawfully sold to the prejudice of the purchaser, the appellant, a two-pound loaf of bread which was not of the nature, substance, and quality demanded by the purchaser, on the hearing of which at Nottingham, on the 2nd day of December, 1887, the justices dismissed the summons. The facts stated in the case were as follows: The appellant bought of the respondent's sister, at a shop situate at 78, Dunkirkroad, a loaf of bread. This loaf was submitted to the public analyst for the borough of Nottingham, from whose certificate it appeared that the loaf contained alum in the proportion of fortyeight grains to the four-pound loaf. The public analysis was not called for by the respondent, and no other analysis was put in evidence. The respondent and two of the men in his employ gave evidence that there was not, and had never been any alum on the respondent's premises, that no alum had been used in the manufacture of the bread, that they were not aware that there was any alum in the flour from which the bread had been made, and that if any alum was in the bread it must have been in the flour when purchased by the respondent. It was contended for the appellant that proof of the knowledge of the adulteration on the part of the respondent was not necessary in order to convict him under sect. 6 of the Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), whilst for the respondent it was contended, on the authority of Core v. James (25 L. T. Rep. N. S. 593; L. Rep. 7 Q. B. 135), that a baker ought not to be convicted of selling bread adulterated with alum in the absence (a) Reported by Alfred H. LEFROY, Esq., Barrister-at-Law. |