CO885-(10-11) — Page 756

PUBLIC RECORD OFFICE

Reference :-

C.O. 885

11 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

2

when authenticated under section 270 of the Merchant Shipping Act, be admissible in the contemplated prosecution. I am prepared to enter a non pros. to the Gibraltar indictment immediately if the judge should require it. Upon the writ of certiorari being granted the opinion of the judge can be taken upon the question whether the Colonial Habeas Corpus Act is binding on the Crown, the Crown not being named ; that is whether, notwithstanding that Act, the writ of habeas corpus ad sutam ipsin Regis, of which I am in possession of hundreds of precedents extracted by myself from the Rolls, may still issue. If the judge declines to issue the writ on the ground that he would not at Chambers decide for the first time upon the construction of the statute application may be made to the Lord Chancellor.'

"If the two writs issue, they may be entrusted to the officer who holds the Lord Mayor's warrants, with directions to report himself immediately to the Governor, and to issue the writs. I advise that the Board of Trade should then move the Secretary of State to repeat his Lordship's instructions to the Governor as to the authentication of depositions, &c., and also to instruct his Excellency to request that the returns to the writs be placed in the hands of the officer entrusted with the service of them. That officer should also be desired not to remain at Gibraltar longer than may be necessary for the execution of the writs and making the returns.'

"The issue of these two writs would, I am satisfied, be very acceptable to the Chief Justice, and if fully obeyed, which I do not doubt they would be, would afford a perfect solution of all the difficulties which have been raised."

"I reserve for another memorandum my view as to the course of action which is desirable should a writ of habeas corpus not be issued, my expectation of obtaining it not being sanguine."

Assuming a writ of certiorari to be issued and placed in the hands of the officer holding the Lord Mayor's warrants, I am prepared to place in his hands a non prox. of the Gibraltar indictment, and notices thereof to his Excellency, the Governor, to J. M. Duffield, Esq., the committing magistrate, to N. Kendall, Esq., as chief of the gaol and police department, commonly called the police magistrate, and to the gaoler that the prisoners being discharged from the indictment remain in custody under the warrant of the committing magistrate only."

"Let the officer holding the Lord Mayor's warrants on his arrival report himself to the Governor, next let him deliver the Attorney General's non pros. to the Registrar of the Supreme Court, and deliver the notices above referred to, and next let him serve the writ of certiorari."

"I advise that the Board of Trade should move the Secretary of State to report his Lordship's instructions to the Governor as to the authentication of the depositions, &c., &c., and also to instruct the Governor to request that the return to the writ be placed in the hands of the officer entrusted with the service of it."

"Let the officer lastly proceed to arrest the prisoners, and in order to enable them to do so, I advise that the Board of Trade should move the Secretary of State to instruct the Governor, by a separate despatch, to carry into effect in the following manner (the writ of certiorari having been previously served) the instructions already given to his Excellency as to the transmission of the prisoners to England, namely, to request J. M. Duffield, Esq., the committing magistrate, to supersede his warrant of committal, and at the same time to request N. Kendall, Esq., the chief of the gaol and police department, to deliver the bodies of the prisoners into the custody of the officer holding the Lord Mayor's warrants, for the purpose of their removal to England under his charge, assisted by Benny, and also to provide him with force necessary for that purpose. It will tend to remove objections if the warrants are backed.

"The officer charged with the above duties should be directed not to remain at Gibraltar longer than may be necessary for causing the non pros. to be entered, the service and execution of the writ of certiorari, and then obtaining the custody of the prisoners."

"If no writ of certiorari be issued I see only one of two courses open, as stated in my memorandum of the 18th instant, (1st) to send the officer holding the Lord Mayor's warrant to Gibraltar, and that the Board of Trade should move the Secretary of State to instruct the Governor to request the chief of the gaol and police department to deliver the prisoners over to him, and also to report their Lordship's instructions as to the authentication and transmission of depositions, &c., or (2nd) to abandon all ideas of a trial in England.

3

"If it should be desired that the prisoners should be tried at the December session at Gibraltar, I should be glad before my return there to be fully informed of all the evidence that can be supplied from England.

"Material evidence which was given at the trial which was commenced in the Supreme Court last June is no longer available, and must be supplied by other witnesses.”

It will be seen that the above suggestions must be read together, as the first is incomplete without the second, and the other two suggest the course that should be pursued in case it is found impossible to carry out the first and second.

The opinion of the Attorney General and Solicitor General is requested on the following points:-

1st. Can the prisoners be brought to England either by some of the legal processes above suggested, or by any other, and if so, what is the exact course that should be pursued?

2nd. Can the desired object be effected with sufficient promptitude to bring the prisoners to trial at the next sessions of the Central Criminal Court?

And, as a branch of this question, will it be necessary to enter a nolle prosequi, and if sò, can it now be entered at any time, or will it be necessary to wait till the Gibraltar sessions.

Opinion.

WITH reference to the second question, we think it, to say the least, very doubtful whether the prisoners could under any circumstances be brought to trial at the next sittings of the Central Criminal Court. Our answer to this question, perhaps, renders it unnecessary to answer the other.

The proposed proceeding is attended with many difficulties, which are sufficiently indicated though not solved by the remarks of the Colonial Attorney General, Solly Flood. We are of opinion that a writ of Habeas corpus would not be granted and should not be applied for: we think it questionable whether a certiorari would be obtained for removing the depositious, &c., and without it a trial in England would be abortive, if it were obtained further questions would arise as to the authentication and reception in evidence of the depositions, questions in which it is possible that a case might be reserved for the Court of Criminal Appeal, in which case the final judgment would probably not be given till the middle of January. We suppose, moreover, that witnesses as well as depositions would be wanted from Gibraltar. Under these circum- stances we are clearly of opinion that the prisoners had better be left to take their trial in Gibraltar in the usual course.

R. P. COLLIER. J. D. COLERIDGE.

Temple, October 1, 1869.

(Signed)