Law Report.
The Times, 1824-10-27T00:00:00

Tvms was an action by Mlr. Dancan, a solihitr of the Coart of Chancery, having an office in New Inn, against the proprietors of the Marving Herald for tvwo 'ibels. The first paragraph charged as li- beilous was inserted in the Herald of the 10th of July, 1823, in the. following terms :_ "One Mr. Andrew Dancan of New Inn, underwent a long exami. nation on achargeofhavinginaecentlz assaulted a female child of only 13 years old. The evidence of the cnild herself, and her companion, Mlr. Dancan's own cousin, of the same age, displayed such a com- plication of disgusting indecencies that we cannot detail it. It is right, however, that we should say, thebaccused denied the principal fIacts alleged, and that the children made some slight variation in their evidence. Eventually, the accused was admitted to bail, hirn- self in 10U., aud two sureties in 501. each, for his appearance again on Tuesday next." The second paragraph appeared in the same paper of July If;, 18,i3, a.nd was as follows:_ ;"Andrew Dancan, the attorney, who wvas charged a week ago wvith attempting to violate the person of a girl of 13, named Ann Chandler, was again examined, but no further evidence was heard, and he was ordered to enter into reeognizances to the amount of 201?. foe his appearance at the Sessions, and all the writnesses were bound over to prosecute." The declaration on these alleged libels contained 144 counts man of thnem varying very slightly from ech other, it commernced with the usual inducements of' good character, and stated, that the plaintiff had never been guilty, or suspected to have bceen guilty, of indecently assaulting female rhildren, or any, such cnme. It then, by way of inrroduction to the first libel, set forth that the plaintiff, on the 8th of July. 1823, was brought before Thomas Hails. Easq., one of the Police Magis- trates, to answer a charge, complaint, and accusation against him, for having assaulted one Ann Chandler, and behaved in an indecent manner towards her; that the charge was in part investigated, and Ann Chandler examined: anid that the inquiry Vws adjournedl to a future day. The plaintiff' then alleged that thie defendants. before any trial by jury, or indictment preferred, and while the complaint was undecided, intending to obstruct the course of iustice, to Drevert the plaintiff from having an impartial trial, to influence. inflame, and pretjdice the minds ot His Mlajesty't subjects, and to injure the plaintiffin his profession and character, Puiblished the first article charged as libellous. By way of introduction to the seecnd articie, the plaintiff set fortb a second examination, on the 1ith or July, on the tame charge. and then set forth the second article as published with ti-e same intentions imputed to the publishers of the first. The declaration alsso laid, by way of special damage, that James Barker, Esq., and Charles Alexander Peters, Esq., had refrained from employing the plaintiff in the way of his profession. The ten lass counts set forth the articles without any inducernent of previious charge. To this declaration, the defendants pleaded first the general issue, "not guilty," and then severa1 sneeial pleas. The second plea fol- lowed the articles in terms alleging the examinations, and the results to have occurred as they stated them; and further averring that the supposed libels contained no other than a true, fair, and just report of the proceedings at the public police-office, Bo3-street. and were published with no standalous, malicious, defamatory, pg won. thy, or unlawful motive ; that the proceedings too*place publicly and opanly; and the reports of them 'Were pub- lished as public news of public proceedings. and with noother intention, and for no other object or purpose. 'The third plea simply alleged, that the several matters and things in the sup. posed libels were true. The foturth plea simply averred, that the supposed libels were, and consisted of nothing more than, fair, true, and correct reliorts of proccedings which wook place publiclv and openly, before ThotasI alls, Esq., at the public police_affice, Bow. street. The fifth plea, applying only to the first libel, set forth the examinations at length of Ann Chandler, Ann Duncan, and Lewis Desormeaux, a surgeon: alleged that the plaintiff' denied the prin- cipal facts, and was admitted to bail; and concluded with an allegation that the article was a correct report, and with a denial of' improper motive. The sixth plea, applyinz in like manner to the second paragraph, justified it in detail as a correct report, but set tI-rth io examinations. The seventh plea, ap- plying to the first libel, with the exception of rIte introductory sel- tence that the plaintiff was examined, set out the examinations aN in the fifth plea, and concluded in similar terms. The eighth pleaa plying t) the second article, as the seventb to tdie firsr, justified t e paragraph in detaiL wich the excention ef the reference to the exa- mination of'the plaintiffhimself. The ninth plea, applying to both libels, stated as a fact, that the plaintiff did indecenily- asault Ann Chandler and Ann Duncan, and that thev made the facts known before the publication ot' the libels, and the tenth, eleventh, end twelfth pleas were to the same eficet. TC. these pleas, excepting the gencral issue and the three last, were demurrets distinctly applicable to each, stating the objections urged by the plaintiff"s counsel. On the three last pleas. issues in fact were taken; and therefore they did not now come under the con- sideration of the Court. Mr. PATTESON, on behalf of the plaintiff, after stating the pleadings, argued in support of the demurrers. Beobre he entered minittely into an examination of the pleas, ite thought it right to ob. serve that the articles charged as libelous did not profess to contain details of the proceedings to which they referred, but to give a mere summnary of those proceedings, and the result o' them in the mind of the reporter. Now, according to the decision in " Lewis v. 'alter," 4 Barnewall and Alderson, ll05. such a summary could not bejus. tified, even if a full detail would be nrotected. In that case, the ibel gave an account of the opening speech of counsel, and then stated that a witness was caled vwho oroved the whole ; and the plea averred that the counsel did so open the case, and that the witness did give evidence which i supported his opening; but the Court held the plea bad, because, if a patty is allowed to ... lt- L -- a e- "It d tUar:1i U StICe, ne must Publish the whole case, and not merely state the conclusion which he draws frorn the evidence. One of these pleas-the fifLh-did profess to set out the denositions z but even if thee justified the snrnmmary, thev ought to have been given at oace to the uorld, and not now introduced on the records of the Court. whbere the readers of the newspapers could not judge of them. Ttie second plea did not evon proftess to do this: it nierely justified the repcrts in their terms; and it mixed them both together. and pleaded both examinations to justify both libels, though they Were distinct and separate. The third plea stated generally, that the matters in the allezed libels were true, which might either mean tltat thevy were faithtfully ieported. or that the plaintiff was gstiltv of the charge made arainst him at the policev office. If it mneant the first, it wouhlt be at least liable to all the ob- jecrions raised to the pieceding plea: and if' the last, it was far too va,oueand uncertain. 'I'he fobaeth plea alice-d generally that the ar- tides were correct reports of public procedediues. and was liable to all the objections rai6ed against the second. There was one o,bjection which applied to all these pieas-:h-t th-y amounled to the general issue-as they really veere iirected to the question of mialice. which they withdrew fiown theconsideration of the jur. Mr. Justice BAS'LrE7.-lf I do a mnan an initury without malice, stm I aut liable to an action The LORD CHIEF JUSTiCE.-The eases to which the general issue applies are thcse of privileged co-nnm;cattions; as where a macter gives a character ts ;- sacrart. But your argument is. that it' these matters of deiente were available at all, they were available under that plea ? lNe. PATTESON assented, and added, that if thev were St avpail- able, they ought not to have beer specially pleaded. H a then procecded to observe, that th ere was no it,ducenen.t to the last ten counts of a judicial charge, and therefore on them it would not appear that proceedings tool: place before a magis'ratc, unless' the ex- pression "- admitted to bail" in the articles should be con- strued as necessarily implying a judicial and public examniration. He camne now tO the fifth plea, on which the case ntnst substantiallv d~eoud, as the other pleas were little more than sammanaries of its allegations, orapplied, with less formal exactness, to the second itbel. In this plea, the exeminations of three witnesses were set forth, two of which conrait v*ery disgusting matter; and the in- lEretce was then drtown, that the first article was a fair. true, and cornrct accourt of the proceedings. Nowt on the face of this plea, it appeared to be incotr;plete, even as a summarv * for it contained no allusion to the evidence of' the surgeon, vwiich was material to the exculpation ot the plaintif, because that witness stated that the in- jury miglit have arisen from many causes besides the outrage iin- outed. and that the girl denied to him the principal part of the charge she supported before the magistrate. If, how- ever, the Court should hold that a summary of a case was within all the pretection afforded to a report in detail, and that the summary in the present instance wars a fair and correc suntinary, then tia broad question would be raised_whether a partv isjubi fled in publishing examis ationa before a magistrate,wtile the chare is yet undetermtined, containing matter defamaterv to anv indivi. dual ? There was no solemr.n decision recognizing the right to pub- lish reports of proceedings in courts of justice. which were open to all the worid, when they contair3nd matter offensive to individuals that right, however, was supported by dic-ta, and would not be oues- tioned not, but even that right was sgtjiect to considerable restrictions. In " The King v. Alary f arlile." 3 Barnewall and Alderson, 169, Mr. Justice Bayley okserved, - We are bound. for the purpose of justice, to hear evidence in the course of' judiciai proceedings, the publication o- whicit ntay have the eftect of an utter subtersion of the morats and religion of the people. Tbe first tine I had occasion to consider this subject was in the case ef 6o:ne trials for adultery. It very o:ten happens that, fir purposes of justice, our ears mav be shocked with extrenmels offensive and indelicate evidence s but tltougii we are bound in a court of justice to hear it, other personts are not a! libertv a"terwards to circulatc it at the risk. of those effects, which, in thte minds of tle young and unwary, sue' evidence may be calculated to produce." in that casc the rule fox a criminal information against the de.eodant, whi had published bet husband's trial, containing blasphemy, was made absolute orn the unanimous opinion of the Court. In the case of " The i ,g . Lee," 5 Espinasse .isi Prizs Reports, 123, the detendants wdrnprd. secuted by information fer publishing in the Smstex Joutmia4 a statemnent of depositions respecting the death of a srtrugler, againt. a man then in castody. Thev ofiered to give evidence that the dep s. sitions were truly stated in tfie artidcle; but AIr. Justice Heath, b. fore whom the cause was tried, refused to receive it, observing, " That such evidence was inadmissible; that ptatting the crimiusality of such proceeding out of the question, the evidence w:as offered cx-partis, aid was the deposition of the prosecutoronly. But be was of opinion that the mere publication of cx-parte evidence before trial was of itselt highiy criminal." " The King v. Fisher," reported itx 2 Campbell, 563, was also a case of libel in a po- lice report, which certainly did not contain a dispassionate ac. count, but was greatly inflamed and coloured by the publisher. This case, therefore. was not exactly in point, because the decision mlight be supported on independent grounds,but it called forth observationks from lord Ellenborough, which were more extensive ir their ap. plication, and pointed out the mischiefof preliminarv disclosures iA striking language. "i f any thing," said that learned Judge, " is more important than another in the administration of justice, it is that jurymen should come to the trial of those persons on whosa guilt or innocence they are to decide, with minds unprejudiaed and pare. Is it possible they should do so, after having read for weeks aFwd months before, er-paer statements of the cvidence against the accused, wtich the latter had no opportunity to disprove or to controvert? By their opn public declarations, we know that the minds of jurymen are often pre-oecupied by sue statements, and that they proceed with terror to the discharge of' their duty, fromi the apprehension that an antecedent bias may influence their verdieL These antecedent publications tend alike io the conviction of the in. nocent, and the acquittal of the guilty. I fully accede to the ce.t5 cited on the part of the defendant. But how can the publicatior, or preliminary examinations, taken ev-parte,be brought within the sap5 of these determ'inations ? The publication of-proceedings in courts of justice, where both sides are heard and matters are flaally det r mined, is salutary, and therefore it is permitted., The publicatiotn of these preliminary exalinations has a tendency to pervert tize public mrtind, and to disturb the course of justice, and it is, tharerore5 illegaL" nd gain "Trials at law fairly reportad, although eneymayoccaionllyprove inju-rious to, individual, have been hel tobe rivlegd.Let them continue to be so priviegd!I The b~oed theyprod peai get and permancnt, and the evil that arisies fromthe Is areandincidlentaj. But these pireliminary examina. donshav no uchP Uiiege ; their only tendency, is to pre,udge thoservhot thelaw till presumes to be innocent, and to poison the source of justice." In the case of " The King v. aFfect," I Barnewtill and Alderson, 379, similar opinions were expressed by the whole Court. In that ease, a rule for a criminal information oh. tained against the printer and publisher of the Rrighton1lera7d, for a peblication of the proceedings before a coroner, was made absolute. Onthat Occasion, Mlr. Justice B3ayley observed of the report- "This is a mnatter of gret criminality; for the inquest b~efore the coroner leads to a second inquiry, in which the conduct of the ac- cused is to be considered by persons who have formed no previous judgmetnt on the ease ;" and Air. Justice Abbott spok-e of the great diifficulty every man1 must feel in overcoming preconceived preju. diices aind opinions, especially in matters of sentiment and passion. In " The King v. Clemnent," 4 BlaraewaU and Alderson, 218, the out supperced the fine imnposed on the defendlant for pub. lishiog a report of the trial of Thistiewood, agafinst the di- rection Of the Judges, before the close of the trials of the etlier traitors, thereby admitting; that even the righit of puiblisthing trials by jury wias subject to limitatioils and rules. These, it wras true, were all cases of a criminal natu-rt; and there was a dis- tinction between these cases and actions, inasmuch as truth was a justification in the latter, and not in the former; biut this distinctioln did not affect the present argument. The reason why alibel wasin- ~dictable though true was, that it tended as much to a6 breach of the peace as. if false; but the grounid for holding premature re- ports indictable was not this tendency, but a tendency to prevent an imp~artial trial, which was a real grevance to the party accused, whether innocent or guilty. Besides, there was nio pretence for asserting that a police oxamination was of necessity a public mnatter ;it might he holden in private whenever the ena- gistrate though.t prop-er. in the ease of "Cjox Y., Coleridge" it Was decided, that even the Attornev of the prisoner had no claim of right to he present ; and suriely if 'a magistrate chose to oPen the dloors to the public, it did not 'follow that any one thus permitted to enter might putblish in a newspaper a detail of all that hapPened to the injury of Private feeling and the preju dice of public justice. On the uthber side, che case of "1The King v. Wright," 8 Term Re- polts, 293, might be cited but that case only determined that a report of the House of Commnons could not be a libel, andI there- fore the miode of publication did not come in question ; while the eages of " The King v. Lord Abingdon," and "1The King v. crevey,") sufficiently proved that matters defamatory of intdiviauals, thouF Privileged wh~en spoken in the house, becme libels when gbllshed even by those who spoke them. The cae of " Curry V. Fateorh ha I Rsanquet and Puller, d25, mighbt also bhe rel:el on, tohstcase was never-finally decided. It was an action agains-t 'The TImaes newspaper for a libel, under the head of"1 Law Report," in which an account was given of a motion forea criminal information a0rinst the plaintiff and asother magistrate. The genieral iessue wvas Pleaded, and at the trial the reporter was called to prove that the re- port was correct and fair. An objection wras raised that this matter of defence ought to haTe been specially Dlezaded ; but L4ord Chief Justice tyreovermuled it, and told the jury', " that though the matter contained'in the paper might be very injurious to the character of the magistrates, yet he was of opinion that being a true account of what, took place in acourt of jua,tice, which is Open to all the world, th blication was not unlawful." The jury found a verdict for t*ituiiefendant ; a motion was made for a new trial ; and though the Court thought the action would not lie, yet on the point of pleading, judgmnt was never given. But in the case of "1 The Yig . ari e," Ythle Judges expresed a strong opinion that the language of the Lerd Ohief Justice Eyre could only be regarded as law wvith very considerable qualifications. Granting it to the full extent, it did not emnbrace police examinations, to whiicn the public had no right of admission, and whiich wrere intended as the founds. tion of ulterior proceedings Ifthe Courtlookedat enuveniencemnerely, they woud find on the onie side only the occa-sional ad vantage derived from Wthoe report, striking the eye of some one who might be able to elucidate ithe truth, and thus assist in convicting the guilty or ac- quitting the innocent-a rare accidental benefit, not occurnang, per- bapit, once in live hundred eases; and, on the other, the certain evil 'of harassing the minid and blackening the character of individuals who might ultimately be cleared of every suspicion. Thousands who reed the charge, and who imbibed, as tihe human mind mus,, a prejudice against theaccused, might never read his vindication, or k~now how the proceedin,gs 3ended. in miany cases, these publics. tions produced geat inconvenience, and obstructed the course of justice, as in the recent trials of "1the King v. Mead," and " the King v. Thurtell " which were fresh in the recollection of the Couirt. On the vwhole, therefore, even if the special and technical grounds of derairrer should fail-even if the Court should hold these a-rticles a fair summary of the depositions, and place a sumn- mnary in the conditLion of a detail, he trusted they would, on the broad anid general pyinciple of the illegalitv of police reports, hold the pleas insuflicient, and give iudgment f;r the plaintiff: M1r. LArWEs, for the deferndant,, said the question fairly raised on these pleadings was most important to the public intertsts. To himn it appeared to b. this-Is the true account of a. judicial examina- tion before a mnagistrate, condlucted in public and in the presence of the prisconer, and given merely as public newrs without comnment of any kindl, or malicious intention, the subject of an action for libel ? And if such account may be published, is the reporter obliged to de.. tail all the odious minati,e of the evidence, or may he give only the uandeniable result of the whole ? Most freely did he admit-he was directe4d by his clients to admit.-.thatlibels might be published in the form of reports, whether of preliminary examinations, or of trials by jr.These cases were divisible into three classes-whiere the report was fleohihyclud-where it was accompanied by comments -and where it was made the vehicle for indecency, for la1sphemy Or for the ebullitions of private malice: In neither of which coud the present case, by any ingenious distortion, be ranged. Indeed here the abstinencee from publishing indecencies was made a Frouna Of accusation, and it wasalleged that the whole disguatingpiarticulars should have Ibeen given to the world. The defenidants,however. would not even have piaeed them on the record,had they not been com pelled, ib hyoitted them till the plaintiff'enscially demurred to she three "'rs specaial pleas, and then they were obliged to Insert the latter pleas in which they were recited. The cases cit&I, in which Testrictionahad been imposedl on the public-ation of criminal proceedings, differed miost esstentially from the present. ln the case of "1the King v. Carlilo,"' the whole Age of Rleason was reprintedl under tuie pretext that it was read at the trial; tile Court was iiisuilted in the very title of the hook; sad it was obvious that the publication of a report was a mere colour for other purposes, unquestionably in violation of law. In the case of"1 Lewis v. Clement," the defendant not only detailed, but characterizedl the proceedlings, by heading his account "1Shame- ful conduct of ani attorney." in the cases of " the King v. Lord Abingdon." and " the King v. Creevy," where the defendants published' speeches purporting to be made in Parliament, the intention withi which they acted was left. to the jury, who were directed to convict them if they only used the form of a reportt as a vehicle for private slander. On the publishers of the articles in the JlfTurning Hrerald, none of these imputations could be cast; hut in their case the question fatirly arose, wrhether a true ac- count of proceedings at police-offices, in open courts, might not imoo- cently be given to the world. Mr. Justice BAt'LEY.-.Then they should be courts which ought to be open-which, by law, the public have a rigcht to enter-and not courts which are only open by the sufferancee of the magistrate. Mr. LAW,Es proceeded to observe, that he spoke of cases only -wher the magistrate had interposed no injunction, and had mani- f'ested no wish for secrecy. There were eases which he might hear inpiate for the moat urgent reasons ; there might be instances in which he ought to enjoin a suppression of' the proceedings;, but when he sat in open Court, and every one might hnear what passed, the right to report correctly seemed to follow. Every case cited in support of the drmurrers had ref'erence to c-riminal proceedings; and no authority-no diciuim even-had been shown, which sanctioned the idea that a party accused had a claim for damnages against a mnan who published a correct account of the charge. In " The King v. Lee, " it appeared that three accounts were given of the transaction-not merely of the evidence but of the facts-and that the papers contained several expressions injurious to the party uinder charge. " The King v. 'Fisher" wvas scarcely cited as an authority in point. Indeed it was none; for no man ceoild doubt that the publication to which it referred was a mnost gross and inflamatory libel, full of vehement expressions against the prosecutor, and tending to represent him as guilty. In "The Kinag v. F?leet," the report was accompanied by coin. mnent's,ad atually published before the coroner 3 jury had given their verdict. In all these case, the expressions of the judges zmust be taken with reference to the cases before them: it was unfair tothiose learned persons to quote tlIemIn any other way; and there.. f'ore Mfr. Justice Bayley, in this case and that of " The Kingz v. C,srlile,"' must not be considered as doing mfore than determining the questions necessarily to be decided. Mr. Justice BIAY'LE Y.-I am certainily of opinion, that to publish examninations before a coroner, in a case yet to be tried, is highly ,criminal, as it tenods to preyrnt a fair trial afterwards. Mlr. LAW ES.-M.fr. Justice BayIey, I amn sure did not mnean to give ani opinion that the party was guilty; only thast the rule for the informationi must be absolute. Mlr. Justice BA`,L.sY.-Not that the defendant was guilty cer- tainly ; but that the substance of an offence appeared to the Court. The LOAD CsssErJUSTxcE....On deciding upon a inotion for criminal informuationi, the Court leave the fc pn;they only say there isground on the affidavits fo. hi nefrne n truth of the matters before them to be tried,.ev h Al'. LAwgs.-And the malicious intention, without wvhich there can be no libel. Air. Justice BAYTLEY.-Do net take it for granted, that if you -"ative malice, you destroy the right of action. If I call a man a b " im to be to to-day, and to-morrow find I am mnis- ~ ~ti~z-a adefence to me, that I injured his character with the ~-'c g sirtcLau motives in the world? a~~I.I~ttte..-In a subsequent part of my address I hope to mneet 2~~sugesdonI am, at presenit, in an early stage of my remnarks, anSItrut, cnsiering the peat importance of the subject, that ilfrive me if trlespass iong-er than usual on their in- IsssF JUSTICE thten observing, that thje hour ~hentheCout rses had nearly arrived, asked MVr. Lawes if he would proceed altttle further, or pause at this stage of his argument ? 1l!r. LAw ESthanked the Court, and siuddhe wrould au here. nossisev.? LAJV ARPORT. COURT OF KING'S BENCII, WESTMMSTEr. rin. Of. LkiUALITY OF POLlCE REPORTS.-DUNCA" V. TRWAvTE5 ANn W)4TTIF:At.