CO885-(16-18) — Page 29

43817

No. 203.

(MALTA.)

ཟ། ༄། །། ། །

PUBLIC RECORD OFFICE

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C.O.885

Reference :-

16 PUBLIC RECORD OFFICE, LONDON

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

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COLONIAL OFFICE TO LAW OFFICERS.

[Power of Colonial Courts under Evidence by Commission Act, 1885, to obtain evidence for use in local criminal proceedings.]

DOWNING STREET,

21st September, 1918.

GENTLEMEN,

I AM directed by Mr. Secretary Long to lay before you certain questions which have arisen with regard to the construction of the Evidence by Coinmission Act. 1885, and the power (if any) of Colonial Courts thereunder or otherwise to obtain evidence in this country for the purpose of criminal proceedings pending in the Colony.

2. Mr. Long's attention was first directed to this subject in December, 1916, on the receipt of a Letter of Request issued by the Court of Judicial Police of Malta asking for certain evidence to be taken in this country in a criminal case, "the Police v. William Farrugia," pending in the above-mentioned Court. He replied in a despatch dated the 8th January, 1917, that it was impossible under English Law for an English authority to execute Letters of Request issued by a Colonial Court in respect of criminal proceedings pending in the latter.

Colonial Office to Governor, 8th January, 1917. (61287/16.)

Governor to Colonial Office, 13th March, 1917. (15182/17.)

Crown Advocate's Report, (15182/17.)

Colonial Office to Senior Master, 17th April, 1917. (15182/17.) (Enclosed memorandum.) House Office to Colonial Office, 5th August, 1908. (28591/08.)

Senior Master to Colonial Office, 7th May, 1917. (23900/17.)

Senior Master to I egal Adviser, Colonial Office, 11th June, 1917.

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3. The Governor replied on the 13th March, 1917, transmitting a report by the Crown Advocate on the procedure followed in a similar case in 1908. Mr. Long was not satisfied that the procedure adopted in that case or the different procedure adopted in another similar case in these forms of procedure could not be proper he thought 1909 was correct, and as it seemed probable that both

it expedient to address a letter dated the 17th April, 1917, to the Senior Master of the Supreme Court setting forth what was done in the 1908 and 1909 cases referred to above and forwarding a memorandum inviting his opinion on various questions with regard to the competence Maltese courts to obtain evidence in this country for use in criminal proceedings in Malta under the Evidence by Commission Act, 1885, or otherwise. His reply dated the 7th May, 1917, shows that the construction of Sections 3'and 4 of that Act is open to considerable doubt, but he appeared to be of the opinion that the Letter of Request night be executed under the Rules of the Supreme Court, Order XXXVII, rules 54-59. Further semi-official correspondence followed (copies of which as also of the other letters and despatches, etc., referred to above are enclosed) and ultimately the desired evidence was taken under the Letter of Request and forwarded to Malta.

Legal Adviser to Senior Master, 12th June, 1917.

Senior Master to Legal Adviser.

15th June, 1917.

Malta Criminal Laws.

4. In July, 1917, a similar application was received from the same Court in Malta, and Mr. Long reluctantly took steps to have it complied with, as in the case of "Police v. William Farrugia." As, however, the witness whose evidence was desired was a naval officer reported missing and presumed killed, the Letter of Request could not be executed. A third case of a similar nature from the same Court in Malta has now come before him, and he feels that the matter cannot be allowed to remain in its present ur satisfactory position.

5. I am to submit for your consideration—-

(1) that the Evidence by Commission Act, 1859, applies to civil proceedings only.

(2) that Section 3 of the Evidence by Commission Act. 1885, standing alone, does not enable a Colonial Court to get evidence taken for it in England for use in criminal proceedings in the Colony.

(3) that this position is not altered by reading Section 4 of the Act of 1885 with Section 3, since Section 4 relates only to matters of procedure, and does not concern the powers of the Court in which the criminal proceeding is going on; or enlarge the scope of Section 3 of the Act.

(10/18.) (20549r-2.) Wt. 15—45. 25. 11/18. D▲ 8. G. 1.

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